Scholars argue that the U.S. government should adapt to address rampant loss of regulatory body quorums.
Since President Donald J. Trump took office in 2025, several agency commissions have lost their quorums, leaving them unable to act. Congress can structure federal agencies in a variety of ways and under one common method Congress establishes a commission to lead the agency. When the U.S. Merit Systems Protection Board lost its quorum, it could not hear appeals from the federal workers whom the Trump Administration let go. At other agencies, commissions without quorums cannot issue new rules.
In a forthcoming article, Nicholas Bednar, a professor at the University of Minnesota, and Todd Phillips, a professor at Georgia State University, argue that courts should modify their approach to certain administrative law doctrines to ameliorate the effects of quorum loss. They also offer recommendations to Congress on how to structure quorum rules in agency statutes.
Bednar and Phillips argue that courts should apply common law principles—a body of law based on judicial opinions—when agency’s organic statutes do not address quorum rules. These principles arose when courts analyzed absences on legislatures, courts, and private corporations. Courts developed these principles to address three types of risk posed by absences in institutions that require majority vote to act—what Bednar and Phillips call counter-majoritarian errors, deliberative errors, and absenteeism. These errors could result in a minority of the body ruling it or the body making decisions that do not account for the diverse perspectives of all members.
Common law principles define a quorum as a simple majority of members, Bednar and Phillips explain. But the law does not show a clear consensus on whether this majority should account for vacancies. Corporate law—the law governing how businesses are run—provides a clear answer: The majority number should include vacancies. Bednar and Phillips explain that this rule makes it more likely that decisions will represent disparate stakeholders. But it makes it difficult for a body to conduct business during vacancies.
Bednar and Phillips explain that voting rules present similar issues. These rules can require a certain number of votes regardless of how many people are sitting when the body votes, or they can require a certain percentage of the number of sitting members.
According to common law principles, a decision-making body—such as a court or a legislature—may only set its own quorum rules when it gets explicit statutory authorization. Otherwise, quorum rules default to common law principles.
Federal statutes often set quorum requirements for agencies established as commissions. Bednar and Phillips’s review of statutes reveals that Congress prefers rules that protect majoritarianism and deliberative decision-making. Congress tends to fix quorums at a majority of total commissioners, accounting for vacancies. Bednar and Phillips explain that congressional intent aligns with common law principles because both value a variety of viewpoints during deliberation.
Commissions value flexibility and the ability to act without a quorum, Bednar and Phillips argue. When a statute does not address quorum rules, the commission may choose its own, and it often chooses rules that will allow it to do business without having a majority of its members present.
The disparity between commission practice and congressional preference leads Bednar and Phillips to conclude that courts should enforce three common law principles: To have a quorum, a commission must have a simple majority of members present; this number should be based on the total number of positions on the commission; and commissions need explicit authority from Congress to enact their own quorum rules.
Bednar and Phillips acknowledge that, if applied, these rules mean commissions will often lose their ability to conduct business. To vindicate certain rights, individuals must take their case to an agency before bringing it in federal court. Quorum loss in these situations blocks individuals from vindicating rights both in front of commissions and in federal courts. In these cases, Bednar and Phillips argue that courts should consider allowing the individual to bring the case directly in federal court. The courts should weigh the benefit of the agency’s subject matter expertise and the cost of delay. This standard could ensure that commissions without quorums do not prevent individuals from vindicating their constitutional rights.
Bednar and Phillips argue that courts should also reconsider the President’s power to remove government officials in light of current problems with commission quorums. Although courts could address the problem by enforcing limits on the President’s power to remove officials, Bednar and Phillips acknowledge that they will not likely do so. As an alternative, they offer that courts could allow removal only when doing so would not result in a quorum loss. Under this arrangement, the President would have to nominate and confirm a replacement before removing a sitting commissioner to ensure that the commission maintained a quorum, explain Bednar and Phillips.
Bednar and Phillips end with three recommendations for Congress. First, Congress should enact the quorum and voting rules it prefers in an agency’s organic statute or as an amendment to the Administrative Procedure Act. Second, Congress should take steps to protect commission quorums by lengthening holdover periods or requiring members to meet certain qualifications to ensure commission decisions represent a wide range of perspectives. Finally, Congress should allow individuals to vindicate their rights in a traditional court when they cannot move forward in agency court without a quorum.
