The Supreme Court's recent decisions in Trump v. Slaughter and Loper Bright Enterprises v. Raimondo have reshaped the legal landscape for federal regulatory agencies, effectively eroding the insulation that once justified the independent commission model. Edward Merlis, a former staff director of the Senate Commerce Committee, argues that Congress should now reconsider this structure.
Since the Interstate Commerce Act of 1887, Congress has relied on multi-member commissions with staggered terms and for-cause removal protections to shield regulation from political whims. But with presidents now able to remove commissioners at will and courts independently reviewing agency interpretations, Merlis contends the rationale for this model has collapsed. “Independence in form without independence in fact is an expensive fiction,” he writes.
Merlis proposes replacing many boards and commissions with single-administrator agencies, akin to the Food and Drug Administration. This shift, he argues, would enhance accountability by creating a clear chain of command. “When an agency acts slowly, inconsistently or politically, no single official can easily be held responsible,” he notes, whereas a single administrator makes authority unambiguous.
The financial argument is also compelling. With roughly 30 independent agencies each supporting about five commissioners plus their staff and overhead, eliminating these positions could yield significant savings. “At a time when Washington constantly claims to be looking for efficiencies, this is an obvious place to start,” Merlis adds.
Speed is another factor. Multi-member commissions often deliberate slowly, but after Loper Bright’s tighter judicial scrutiny, delay can become dysfunction. A single administrator could move faster on enforcement and rulemaking while remaining subject to congressional law and court review.
Critics may argue that commissions provide bipartisan balance and expertise. However, Merlis counters that “bipartisan design only makes sense if the agency is truly insulated from partisan control.” Without that insulation, the structure becomes ceremonial and misleading, suggesting independence that no longer exists.
Merlis frames the issue as a democratic imperative: voters elect a president to set executive branch direction, and agencies should reflect that reality. A single-administrator model, he says, “would be more honest about where power resides and more consistent with the constitutional design of a unitary executive.”
Recent events underscore the stakes. Trump’s removal of election commissioners has already sparked fears of midterm interference, highlighting how removal power can reshape agency priorities. Similarly, Schumer’s criticism of GOP spending plans and ongoing bipartisan Russia sanctions efforts show the tension between political control and independent governance.
Congress created these commissions to solve specific problems, Merlis concludes, and it can revise them when the legal environment changes. “Preserve the mission, streamline the structure and put a single confirmed administrator in charge.” The ground has shifted, and lawmakers should follow suit.
