Brian Murchison Publishes Article in the Hofstra Law Review The article explores how the U.S. Supreme Court should view independent federal agencies and presidential removal power.

By Law Communications
April 9, 2026

Washington and Lee law professor Brian Murchison has published an article in the Hofstra Law Review. The article, titled “The People, the Branches, and the Pearl of Independence,” examines the relationship between the Constitution, presidential power, and the autonomy of independent federal agencies.

Murchison notes that since 1887, Congress addressed an array of issues by creating expert federal agencies, such as the Interstate Commerce Commission, the Federal Trade Commission, the National Labor Relations Board, and others. The principal officers of these agencies are appointed by the President on advice and consent of the Senate, serve limited staggered terms, are bipartisan in the sense that only a bare majority of the agency’s officers can be members of the same political party, and are “independent” in the sense that the officers are removable only by the President on a showing of good cause.

Murchison says that U.S. Presidents of both political parties have chafed over their lack of at-will removal authority over the independent agency commissioners. While the legal question was settled in 1935 when the U.S. Supreme Court upheld the Federal Trade Commission Act, critics now view the Court’s rationale as obsolete and undemocratic.

“The constitutionality of the independent agencies is now back before the Supreme Court. This Article argues that the Court in its deliberations should recognize several factors that are highly relevant but may not be entirely visible to the Court. First, the Court should recall that the model of the independent agency was created at a time when majoritarian party politics allowed little opportunity for minority and individual voices to be heard in a national forum. Today’s independent agency heads should be exempt from at-will removal and thus allowed to serve the same purpose of attending to different perspectives on regulatory issues. To illustrate this point, the Article takes note of a famous work of fiction by Henry Adams, Democracy: An American Novel, which captures the tension between oppressive majoritarian politics and the need for new institutions such as independent agencies. Second, the Article urges the Court to recognize that agencies with for-cause tenure protections are poised to encourage disinterested judgment on regulatory issues, thus providing another rationale for retaining the independent agencies. Besides reviewing these background considerations, the Article proposes a new framework for removal cases, strengthening the role of popular sovereignty in the regulatory context,” writes Murchison.

The full article is available online in the W&L Scholarly Commons.

Professor Murchison joined the faculty at Washington and Lee in 1982. He focuses his teaching and scholarship on First Amendment issues, administrative law, mass media law, jurisprudence, torts, civil liberties, and contemporary problems in law and journalism. Murchison’s articles have appeared in a variety of law and scholarly publications, including the Columbia Journal of Law & the Arts, the Harvard Civil Rights–Civil Liberties Law Review, the North Carolina Law Review, the Georgia Law Review, and the Emory Law Journal.

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