The Chairman or the Board? Appointments at Multimember Agencies

For the past 130 years, Congress has alternated between two competing structural visions of ideal administrative agency design—single-administrator versus multimember organization. Over time, Congress has frequently reacted to strong arguments from both sides by approving various arrangements that conflate the two models, particularly with respect to the important but often overlooked authority to appoint “inferior Officers” within multimember agencies. In many cases, the chairmen—or their equivalent—of these multimember boards and commissions retain some or all power to select high-ranking agency staff, whereas their fellow board or commission members have authority over agency rulemaking, adjudication, and other key functions. Although such power-sharing arrangements may have kept the peace in some sense for many years, recent events call into question the constitutional integrity of these mixed-management models.