Document Type


Publication Title

Administrative Law Review

Publication Date

Fall 2019



Page Number



single director agencies, commissions, administrative law


Administrative Law | Law


The question ofhow best to design a new agency is of immense public importance. Congress creates new agencies and reforms agency structures with some regularity, while commentators frequently callfor the creation of new or redesigned agencies. Scholars have, as a result, increasingly turned to studying the diversity of agency structures and questions of agency design.

In this Essay, we tackle one of the decisions that must be made in designing any new agency--the choice between a single-director agency and a multimember commission-and we make a general case against multimember commissions. For the most part, scholarly discussion of these structures is interwoven with questions of agency independence. But these two questions--singularity and independence--can be pulled apart and assessed separately. Yet surprisingly little of the existing literature focuses systematically on this decision.

The central benefits of single-director agencies are that they better ensure agency efficacy at accomplishing statutoy mandates, and that they offer clearer lines of responsibility and thus accountability for ageny failures. Proponents of multimember commissions concede the ineffiiency of its design but hold that ineffciency is desirable because it serves as a defense against libery-infinging actions. We term this the "safeguards of liberty fallacy" and show that it rests on faulty foundations.

The most often discussed benefits of multimember commissions are that they enhance deliberation and accountability. Dissents also serve as a 'fire alarm" signal to Congress and the courts ofpotential agency malfeasance and thus enable greater accountability. We do not disagree that these are potential benefits of a multimember commission, but we believe that these benefits are wildly overvalued, and their costs are widely undervalued. In addition to suffering from baseline problems, these arguments fail to take seriously the reality of asymmetric politicalpolarization. Finally, we turn to the relationship between multimember commissions and regulated entities. We argue that the adjudicatory origins of multimember commissions cannot cary the weight of that design choice in an era of rulemaking and we also suggest that multimember commissions might suffer from more acute industy capture than single-director agencies. In short, the general case against multimember commissions is extremely strong. Scholars and policymakers would be well-advised to recommend single- director agencies as a default presumption.



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