How Congress Might Shield Agencies from a Outgoing President’s Power Grab

In a recent legal commentary, Mark Joseph Stern and Dahlia Lithwick described how the Supreme Court’s decision in the Slaughter case enables a departing president to remove all members of certain independent, multi-member agencies, effectively freezing their operations. They highlighted the potential fallout for bodies such as the Federal Trade Commission, Federal Communications Commission, National Labor Relations Board, and Merit Systems Protection Board, which could leave critical regulatory and employee-protection functions stalled.

To counter this, they cited proposals from Nicholas Bednar and Max Sarinsky that would let Congress permit acting or interim leaders to restore a quorum and allow affected individuals to sue directly in federal court when agencies are incapacitated. The analysts argue that these legislative tweaks would not raise constitutional issues and are essential for the incoming Democratic administration to avoid being hamstrung.

They also pointed out recent comments from Justices Clarence Thomas and Amy Coney Barrett indicating that a non-functioning agency cannot provide relief to claimants. The piece urges the forthcoming Congress to prioritize these changes to preserve agency effectiveness and protect public interests.