In March 2025, the Merit Systems Protection Board (MSPB)—the three-member commission that considers employment claims brought by federal employees—lost its quorum. Raymond Limon retired as his term expired even though the MSPB’s statute permitted him to remain for an additional year, and President Trump removed Cathy Harris from her position, violating statutory protections that limit the removal of MSPB members to situations of inefficiency, neglect of duty, or malfeasance. Without a quorum, the MSPB is unable to hear the appeals brought by thousands of federal employees removed by the Trump Administration. In addition to the MSPB, the Equal Employment Opportunity Commission, the Federal Communications Commission, the Federal Election Commission, the National Labor Relations Board, and the Tennessee Valley Authority all lost their quorums within the first six months of the new administration as well.

Simultaneously, the Supreme Court has indicated that it is likely to hold that removal protections are unconstitutional, overturning a precedent set in Humphrey’s Executor v. United States and allowing the President to create vacancies that Congress never anticipated and that commissions cannot fill without Senate-confirmed replacements. As a result, we anticipate that quorum losses will become a more frequent occurrence, leading to agency inaction, non-execution of the laws enacted by Congress, and threats to the rights of individuals who rely on these commissions to adjudicate cases.

In response to this new state of affairs, we have written Commission Quorums, a draft article that presents a systematic study of quorum rules in federal commissions. In it, we offer a detailed account of how quorum and voting rules vary across commissions using original data from seventy-six agencies. We also recover the common-law principles that govern quorums and voting rules in multimember institutions, identify how courts have inconsistently applied these principles to commissions, and offer a framework for how courts and Congress should respond to the increasing frequency of quorum losses.

Drawing from our research, we use this blog post to answer some of the questions that motivated our research.

1. What is the role of quorum requirements?

Multimember agencies exercise their authority through majoritarian decision-making. Majoritarianism holds that a body should not be ruled by its minority, and decisions arrived at through majority decision-making are often viewed as more “correct” and more representative of the governed.

Vacancies and absences pose two unique risks to collective decision-making. When an institution acts despite a high number of absent members, it risks counter-majoritarian errors, where the institution makes a decision that conflicts with the preferences held by a majority of its members. When a sufficient number of the majority coalition are absent, the minority may prove capable of exercising the authority of the commission in ways in which a majority of members would disapprove. Vacancies and absences also poses a risk of deliberative errors, where the decision fails to reflect due consideration of diverse perspectives. For example, Congress required that most presidential appointees to the Access Board be individuals with disabilities so their lived experience would inform the Board’s work. When vacancies or absences drop that representation below a majority, the Board acts without the very perspective Congress deemed essential.

The simplest way to prevent these errors is to require the participation of all members of the body. Yet, this rule quickly leads to dysfunction within multimember institutions. Vacancies and absences would prevent large bodies from operating in the presence of illness, travel, or other circumstances. Moreover, universal attendance requirements enable a single member to hold the commission hostage by intentionally choosing not to attend a meeting. The ability of the minority to veto commission action via exploitation of procedural rules violates the basic principle of majoritarianism.

Quorum rules serve to balance these risks by requiring the presence of a certain number of members to transact business. As we discuss more thoroughly below, a simple majority of members constitutes a quorum under traditional common law principles. The flexibility of this rule ensures that the minority cannot prevent the body from acting by intentional absenteeism, but allows for meaningful deliberation by requiring the attendance of a majority of the body.

2. How do courts, Congress, and commissions structure quorum and voting rules?

For centuries, courts have been called upon to evaluate the authority possessed by multimember institutions plagued by vacancies. The importance of quorums has led to what we call the common law of quorums, which courts developed in the context of legislatures, municipalities, and private corporations. These common-law principles apply in the absence of statutes, charters, or bylaws with explicit quorum rules. Under common-law principles, the default rule is that a simple majority of members constitutes a quorum of a deliberative body. So long as a majority of the body is present, those members may transact business on its behalf. To ensure that majorities do not abuse the minority, common law also requires members to be given notice of meetings and hearings.

Courts, however, have often disagreed as to what constitutes a “majority” for purposes of this default rule. On the one hand, a quorum rule could require the presence of an absolute majority of authorized members, regardless of whether the body has vacancies. For example, a seven-member body would always require four members even when only five members are in office. We call this a fixed numerosity quorum. Alternatively, the rule could require an absolute majority of currently appointed members. In this case, a body of five members could transact business with three members in office so long as two members are present at the meeting. We call this an appointed majority quorum. Contemporary treatises of parliamentary procedure offer conflicting conclusions as to whether the default rule requires fixed numerosity or an appointed majority, while corporate law principles have consistently required a majority of the entire board, including vacancies.

Congress only sometimes enacts quorum requirements in the organic statutes governing commissions. In our survey of seventy-six commission, Congress has imposed some sort of quorum rule for forty-one commissions (53.9%). These provisions reveal a strong preference for fixed-numerosity requirements. A significant majority of commissions with statutory quorum rules use a fixed numerosity quorum (89.3%). By contrast, only four commissions (5.3%) have an appointed majority quorum imposed by their statute, and eight commissions (10.5%) have what we describe as unspecified majority quorums, where Congress failed to specify whether it meant a majority of members as fixed by the statute or a majority of members currently in office.

Commissions, however, prefer quorum rules that leave them with flexibility in the event of vacancies. Of the thirty-four commissions without statutory quorum rules, nine (25.7%) have adopted an appointed majority quorum, and six (17.1%) have adopted an unspecified majority quorum. Only six commissions (17.1%) have adopted a fixed numerosity quorum. An additional two commissions (5.7%) have more complicated quorum rules. A preference for greater flexibility makes sense from the perspective of the commissions. Commissions strive to maintain operations even when elected officials fail to restore their quorums. The absence of a quorum disrupts commission activities and, in some commissions, produces backlogs that debilitate the commission for years. This figure describes our findings across federal government commissions:

3. Why do commissions lose their quorums? What consequences result when commissions lose their quorums?

Commissions often lose their quorums for an extended period because of vacancies. Vacancies naturally arise when a commissioner’s term expires, or a commissioner unexpectedly dies or resigns. Sometimes, however, vacancies arise from partisan politics. Presidents take longer to nominate individuals to commissions, and confirmation delays in the Senate have been growing for decades. Moreover, the Supreme Court’s recent expansion of the President’s removal power has emboldened presidents to remove commissioners despite statutory limitations. We expect the problems associated with quorum losses to grow more salient in years to come.

Of course, vacancies have consequences for all agencies, not just commissions. In agencies led by a single appointee, however, an acting official often fills the vacancy, ensuring the agency continues to operate despite a vacancy. The Federal Vacancies Reform Act, however, does not apply to most commissioners. Consequently, no acting officials exist to ensure that commissions remain capable of exercising their full authority. The absence of a quorum may prevent the commission from promulgating regulations, enforcing existing law, and issuing final orders in adjudication.

In some instances, Congress has sought to prevent the dysfunction that results from quorum losses. We describe two mechanisms Congress has used to avoid these consequences: preventive structures and protective structures. Preventive structures reduce the likelihood that a commission experiences a vacancy that would cause the loss of a quorum. Two preventive structures are particularly common. First, Congress often includes holdover provisions that allow members to serve for some period following the expiration of their term. Second, Congress often includes removal protections that prevent the President from removing members. Both of these preventive structures address two common causes of vacancies that result in quorum losses.

Protective structures enable a commission to exercise its authority during the absence of a quorum. Most of these structures are created by the commissions themselves—not Congress. In many cases, commissions have promulgated rules allowing career employees to exercise a significant degree of authority when the commission lacks a quorum. In other cases, commissions have sought to delegate authority to the remaining members. These delegations cause confusion about the degree of authority retained by commissions in the absence of a quorum. Moreover, these sorts of delegations and other protective structures often undermine Congress’s intent for commissions to make decisions through deliberative decision-making of a majority of authorized members.

4. How should courts and Congress respond to the rising frequency with which commissions lose their quorums?

Overall, our research raises two normative concerns. First, many commissions behave in ways that appear contrary to congressional intent, evading deliberative decision-making to preserve functionality. Second, expansion of the removal power will increase the frequency of quorum losses, further undermining the ability of these agencies to faithfully execute the laws enacted by Congress. We address these concerns with four recommendations.

First, when statutory quorum rules are ambiguous or absent, courts should enforce the following common-law principles: A simple majority of the total number of members constitutes a quorum of a commission, including those seats that are vacant, and commissions may enact quorum rules only if Congress has granted them explicit authority to do so. These principles are consistent with congressional intent of ensuring that multimember agencies deliberate and obtain consensus among a set of varied stakeholders. In addition, to the extent that Congress has codified quorum rules in commissions’ organic statutes, the vast majority are fixed at a majority of the total number of commissioners, including vacancies. When Congress has determined that a statute should be administered by a commission rather than a single individual, courts should uphold that value judgment in the absence of Congress’s explicit decision to the contrary.

Second, courts should reconsider exhaustion requirements when agencies—especially adjudicatory agencies—are inquorate. When Congress establishes a statutory-review scheme, individuals must ordinarily exhaust all administrative remedies before seeking review in federal court. Yet applying exhaustion and channeling requirements to inquorate commissions precludes individuals from obtaining judicial review and, in some cases, vindicating their constitutional right to due process. The extended absence of a quorum at the MSPB between 2017 and 2022 illustrates this problem. Congress granted the MSPB authority to hear disputes between career civil servants and their government employers. Yet, the lack of quorum prevented employees from vindicating their constitutional rights, because the Federal Circuit held that the absence of a quorum did not excuse exhaustion and channeling requirements. Consequently, many employees waited for years before obtaining judicial review of their cases. The potential for commissions to lose their quorums counsels for reconsideration of exhaustion requirements, at least in such situations.

Third, if the Supreme Court overrules Humphrey’s Executor, the president’s removal power should not apply when doing so would lead to quorum losses. The Supreme Court has explained that the President may generally remove principal officers notwithstanding statutory restrictions under the Constitution’s vesting and take care clauses, which provide that “[t]he executive Power shall be vested in a President” who “shall take Care that the Laws be faithfully executed.” Yet, unlike with single-headed agencies subject to the Vacancies Act, the president’s removal of commissioners can result in the law going unenforced. A single removal may leave a commission able to function so long as the body retains a quorum, but it may also leave the agency without the ability to promulgate rules, adjudicate cases, initiate enforcement actions, or undertake the other activities Congress expects of it. Given the derivation of the removal power from the take care clause, it simply cannot be the case that the removal power can be used to prevent the laws from being executed. Under this theory, presidents would be required to nominate and the Senate would be required to confirm an appointee to replace the commissioner the President seeks to remove.

Fourth and finally, we recommend Congress seek to codify its preferred quorum and voting rules, and, given the inapplicability of the Vacancies Act to commissions, allow limited holdovers when commissioners’ terms expire in the ordinary course and broad holdovers when the expiration of a member’s term would result in the loss of a quorum. In addition, Congress should consider amending quorum rules to require the presence of certain members with particular backgrounds for a quorum to be met. Lastly, Congress should consider explicitly authorizing litigants with cases before commissions lacking a quorum to move their cases to Article III courts.

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Quorums are fundamental to the structure and function of multimember agencies. As vacancies, confirmation delays, and the expanding assertion of the President’s removal power increasingly disrupt commissions, quorum rules have become more relevant in everyday administrative governance. Quorum losses not only prevent multimember commissions from carrying out their statutory missions but also jeopardize individual rights and undermine democratic accountability. By recovering the common-law principles governing collective decision-making, documenting the wide variation in statutory and regulatory quorum rules, and offering a normative framework for judicial and legislative reform, we seek to restore coherence to an essential but fragile aspect of agency design and aim to ensure that commissions remain capable of deliberative decision-making and executing the law entrusted to them by Congress.

Nicholas Bednar is an Associate Professor of Law at the University of Minnesota. Todd Phillips is an Assistant Professor of Legal Studies at Georgia State University.