Publication Title
Stanford Law Review
Volume
78
Page
1125
Year
2026
Abstract
Multimember commissions are a central feature of the modern administrative state. Yet a growing number have lost their legal authority to function—not through statutory repeal or defunding, but because they lack a quorum. In many cases, these quorum losses stem from the President’s assertion of a broad removal power, which causes vacancies in the commission’s membership. Quorum losses lead to agency inaction, prevent the executive branch from ensuring faithful execution of the laws, and threaten the constitutional rights of individuals who appear before adjudicatory commissions.
This Article presents an empirical study of quorum rules in multimember commissions. It traces how commissions lose their quorums, explores the consequences of quorum loss for administrative governance and individual rights, and analyzes the legal rules that govern when—and whether—a diminished commission may act.
This Article makes three contributions. Doctrinally, it explains the body of common law that governs the transaction of business in multimember institutions and shows that courts have inconsistently applied these principles in the administrative law context. Empirically, it draws on original data to illustrate variation in the quorum and voting requirements within seventy-six multimember commissions. Normatively, the Article raises questions about the ways in which quorum losses may impact the ability of the executive branch to fulfill its constitutional and statutory responsibilities. We urge the application of common law quorum and voting defaults in the face of statutory silence to preserve the deliberate structures Congress designed. We also contend that presidential removals that destroy a quorum may be unconstitutional if they frustrate the executive’s duty to faithfully execute the laws, and we call for relaxation of exhaustion requirements when agency inaction deprives individuals of judicial review. The Article concludes with recommendations for how Congress should restructure statutory quorum requirements.
Recommended Citation
Nicholas Bednar and Todd Phillips, Commission Quorums, 78 Stan. L. Rev. 1125 (2026), available at https://scholarship.law.umn.edu/faculty_articles/1211.
Rights
http://rightsstatements.org/vocab/InC-EDU/1.0/
Appendix
Archival Statement
Note: The documents on this page were created before current policy requirements took effect, and therefore may not be accessible. Request this content in an accessible format.
