When a multi-member agency loses its quorum, the cases before it stop. The Supreme Court's 2026 removal-power decision changes how that happens; it does not give courts a way to make the agency decide.
Several federal agencies decide cases through multi-member boards or commissions that need a quorum to act. When members are removed or seats stay empty, matters before the agency can wait indefinitely. Recent Supreme Court decisions on the President's removal power make that situation more likely and raise a recurring question: can a court order an agency without a quorum to decide?
The removal-power decisions
On May 22, 2025, in Trump v. Wilcox, the Supreme Court stayed lower-court orders that had reinstated a removed member of the National Labor Relations Board and a removed member of the Merit Systems Protection Board. On June 29, 2026, in Trump v. Slaughter, No. 25-332, which concerned the removal of a Federal Trade Commissioner without cause, the Court overruled Humphrey's Executor v. United States, 295 U.S. 602 (1935), and held that officers exercising executive power must be removable by the President. The decision's application to each agency will be worked out in later cases.
Why quorum matters
A board that lacks the members its statute requires cannot lawfully decide. In New Process Steel, L.P. v. NLRB, 560 U.S. 674 (2010), the Court held that the NLRB's delegated authority could not be exercised by only two members under 29 U.S.C. § 153(b). The removal of Member Gwynne Wilcox in January 2025 left the NLRB below that quorum until later Senate-confirmed appointments restored it. Cases needing a Board decision waited throughout.
Can mandamus make an agency without a quorum decide?
The writ compels a duty the respondent is able to perform. An order directing a board to decide when it lacks the members needed to act lawfully would direct an unlawful act, and a court cannot fill the seats: nomination and appointment are committed to the President and the Senate. A delay claim against an agency in that position is therefore weak for reasons that have nothing to do with the merits. The TRAC factors and the discrete-action rule of Norton v. Southern Utah Wilderness Alliance both point the same way; see Norton v. SUWA: The Discrete-Agency-Action Rule.
What a court can sometimes compel is action that does not need the full board: a step assigned by statute or regulation to staff, a regional director or an administrative law judge. Whether such a step exists depends on the agency's own statute.
Statutory exits
Some statutes avoid the problem by letting a party leave the agency. Under 42 U.S.C. § 2000e-5(f)(1), a person who filed an employment discrimination charge with the EEOC may obtain a notice of right to sue after 180 days and proceed in court. Where such an exit exists, it is usually an adequate alternative remedy that defeats mandamus. Where it does not, the practical options are limited to waiting, seeking whatever interim relief the statute allows, or challenging a removal or appointment directly.
After Slaughter
The 2026 decision does not itself address quorum, vacancies or delay. It does mean that membership of many boards can change with administrations more readily, which makes quorum gaps a predictable risk for litigants. Whether the end of Chevron deference changes how such agencies' interpretations are reviewed is a separate question, discussed in Loper Bright and Federal Mandamus Practice.
Key points
- Trump v. Slaughter (June 29, 2026) overruled Humphrey's Executor; Trump v. Wilcox (May 22, 2025) had stayed reinstatement orders for NLRB and MSPB members.
- Under New Process Steel (2010), the NLRB cannot decide cases without its statutory quorum.
- A court cannot order an agency to act when it lacks the members required to act lawfully, and it cannot fill the seats.
- Statutory exits, such as the EEOC right-to-sue notice, are usually an adequate remedy that displaces mandamus.
- Slaughter does not address quorum or delay directly, but it makes quorum gaps a foreseeable risk.
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