By admin 
The Supreme Court’s June 29 decision upholding President Donald Trump’s firing of Federal Trade Commissioner Rebecca Slaughter is being widely and accurately reported as portending a huge expansion of presidential control over the administrative state. For once, Trump’s social media post calling the Supreme Court’s “biggest and most consequential” decision this term is not an exaggeration.
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What is equally important, however, is that Trump v. Slaughter arrogates to the Supreme Court power that the Constitution vests in Congress, not the judiciary. In that respect, it is of a piece with other Supreme Court decisions under Chief Justice John Roberts that diminish Congress’s constitutional role and instruct it on how it may exercise whatever legislative power the Court is willing to acknowledge.
Slaughter holds, in seemingly categorical terms, that presidents must be able to fire at will the heads of any administrative agency—including an independent regulatory commission—so long as the agency exercises “executive power.” Writing for the majority in the Court’s 6-3 decision, Roberts states: “When an agency ‘executes’ a congressional mandate against private parties, it exercises executive power—no ifs, ands, or quasis about it.” As a result, it is not just the FTC over which presidents now have yet more expansive power. Trump is now free to fire heretofore independent administrators who regulate financial markets, nuclear energy, telecommunications, consumer product safety, and workplace safety. He is also better positioned to sic these agencies and others on individuals or firms he disfavors.
Despite Slaughter’s appeal to categorical formalism—if administrators are exercising executive power, they are always doing so as aides to the president—leaves many questions unanswered. Such uncertainty is yet more conspicuous because of another June 29 decision, . Trump purported to fire the economist, Lisa D. Cook, from the Board of Governors of the Federal Reserve System for cause after William Pulte, director of the Federal Housing Finance Agency and now the acting director of national intelligence, accused Cook of mortgage fraud for erroneously claiming on a loan application that an intended vacation home would be her principal residence. (It has been reported that her mortgage application may be accurate on one page and inaccurate on another; it does not appear that the error misled the mortgage lender or affected the terms of her loan.) Discerning from an earlier Supreme Court that the justices were unlikely to give the president at-will firing power over the Fed, Trump asserted that Cook’s alleged wrongdoing gave him the “good cause” required by statute to fire her.
Technically, the opinion of Chief Justice Roberts for the Court’s five-person majority did not state outright that the independence of the Fed is constitutional; the Justice Department never advanced that argument. The Court just upheld a lower Court order keeping Cook in office while the litigation moves forward. The Court held that Cook was entitled to at least a rudimentary administrative hearing before removal; that her removal, if pressed, would be judicially reviewable; and that it would not be enough to remove her if the president simply stated a concern about her “conduct, ability, fitness, or competence.” The assertion of cause could not be pretextual: “Whether ‘cause’ for removal exists,” Roberts wrote, “will depend, at least in part, on the seriousness of the alleged misconduct, and the extent of any nexus that may exist to the Governor’s professional duties.”
Justice Brett Kavanaugh wrote a separate concurrence to say flatly what the Roberts opinion plainly implied: In the view of a majority of justices, the Fed’s constitutionality is established by its historic linkage to a tradition of administrative independence regarding the maintenance of a strong American currency going back to the Bank of North America created by the Continental Congress and the First and Second Banks of the United States, chartered during the early Republic. Kavanaugh wrote: “Even temporary uncertainty about the status of the Federal Reserve could spark political upheaval, including confusion about whether the President could immediately remove multiple Governors at will, as well as turmoil in the U.S. and world economies.”
The Court’s support of Fed independence is all well and good, however, but puzzling in two respects following its decision in Slaughter. First, it is unclear why the Fed’s highly contestable historical pedigree establishes the constitutionality of “good cause” protection for its members, but it called “independent” was not enough of a pedigree to legitimate the independence of modern commissions created under Congress’s power to regulate commerce. Second, and perhaps more perplexing, the modern Fed does not just adjust the national money supply. It also regulates the privately owned Federal Reserve Banks. Under Chief Justice Roberts’s Slaughter opinion, this function would seem to be categorically executive. Does Slaughter imply that a president may remove Fed Governors only for cause, but may somehow nonetheless control their regulatory decision-making? What if other agencies were also given a say in governing the money supply? The opinion does not say.
Nor does Slaughter explain how administrative agencies that do adjudication for a living can survive. Roberts writes in Slaughter: “[W]e [do not] determine the fate of officials not before us. In particular, as the Solicitor General recognized at argument, the permissibility of tenure protections for the judges of ‘non-Article III courts,’ such as the Tax Court and the Court of Federal Claims, is not ‘presented’ or ‘briefed’ in this case and poses a ‘different set of questions.’” That sounds reassuring unless one reflects that such “courts” must also be exercising executive power to the extent they “‘execute[]’ a congressional mandate against private parties.” Assuming that presidents are not constitutionally entitled to direct such bodies as to how to rule, the obvious question is posed: “Why not?” Even if due process means presidents cannot dictate outcomes, should they not be able to fire judges who decide cases “the wrong way?”
Slaughter’s dubious conclusion about presidential removal power leans on three weak reeds. The first is a tendentious reading of history, under which Roberts minimizes the controversy that has surrounded the scope of presidential removal power since the Founding. He covered much the same territory in his 2020 opinion in , which held that presidents are constitutionally entitled to fire the director of any single-headed administrative agency. Then, as now, his conclusion ignores the growing mountain of evidence—amply cited in Justice Sonia Sotomayor’s dissent in Slaughter—showing that the ratifying generation did not understand the Constitution as vesting a presidential removal power beyond Congress’s authority to regulate.
The second is an almost comically reductionist view of democracy—elaborated in Seila Law, but left unstated in Slaughter—in which the unquestioning allegiance of subordinate administrators to the president is somehow the lodestar guiding American democracy. Nowhere is it mentioned that democracy is served when conscientious administrators do their best to implement the statutes enacted by a democratically enacted Congress. Democracy is served when agencies are required to receive and respond to public input and, as required by law, publish their proposed regulations. Democracy is served when courts review agency administrative output to ensure that the bodies have remained faithful to their democratic mandate. American democracy is not simply a matter of presidential plebiscite.
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The third is the supposed incomprehensibility of Humphrey’s Executor v. United States, the Court’s unanimous 1935 opinion upholding Congress’s authority to create an independent FTC—unanimity all the more remarkable because of the 1935 Court’s heavyweight membership and philosophical diversity. As Justice Elena Kagan wrote in her Seila Law dissent: “That a court including Charles Evans Hughes, Louis Brandeis, Benjamin Cardozo, and Harlan Stone somehow misunderstood [the FTC’s] powers lacks all plausibility.” Far from being incomprehensible or unworkable, Humphrey’s Executor has become uncertain in its application only because the Roberts Court has insisted on embracing a rigid constitutional formalism that Humphrey’s Executor and succeeding opinions have resisted. Far from being problematic, Humphrey’s Executor has undergirded a conventional understanding of Congress’s power to create independent agencies, which has remained stable for 90 years.
What is left out of Slaughter most obviously is the text of the Constitution, which, of course, nowhere mentions a presidential removal power. What the text does include is a grant to Congress of the power to “make all laws which shall be necessary and proper for carrying into execution the foregoing powers [of Congress], and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.” In enacting the 1914 Federal Trade Commission Act, Congress thought it “necessary and proper” that decision-making over antitrust enforcement and the elimination of unfair and deceptive trade practices be entrusted to a bipartisan multimember body, members of which would serve fixed terms without fear of being fired for insufficient political loyalty to the president.
Congress’s decision hardly eliminated presidential influence over the FTC. Presidents still appoint their members and the chairman. They oversee their budget requests to Congress. When the FTC proposes rules, it invites public comment, including from the White House. But the structure of the FTC, to some extent, requires that its decisions be made through bipartisan deliberation. Minority members get to serve as watchdogs, alerting Congress, the courts, the media, and the public to any weaknesses in the majority’s judgments. Preferring such a structure is a matter of policy, and policy decisions regarding the structure of administrative decision making are presumptively within Congress’s portfolio—not that of the judiciary.
In a separation-of-powers system, power is a zero-sum game. When the Court overturns legislation on the ground that it violates an individual’s rights to free speech, the free exercise of religion, or due process, or denies them the equal protection of the law, that is the inevitable consequence of having a constitution designed to protect individual rights against even a political majority. The courts are claiming power, but it is power on behalf of protecting the individual. When Congress overturns legislation on behalf of the president, it is taking sides in a contest between two elected branches, each with plenty of self-defensive weapons of its own—and too easily usurping authority courts were never intended to have. One would expect the Court to tread lightly here.
The Roberts Court has no such modesty. In Slaughter, it limits Congress’s ability to discipline the executive through institutional structure. The 2024 curtailed Congress’s power to discipline presidents through criminal law. Through the invention of the , the Court has said that the explicit enactments of Congress are not to be implemented literally if the Court determines that an agency’s exercise of power is too “transformative” and “unheralded” to be satisfied through ordinary statutory reading. As for resolving any ambiguities in statutory meaning, that, too, the Roberts Court asserts, involves only or expertise. Chevron deference to how agencies read their statutes, according to the Roberts Court, was an abdication of judicial power. And this may not be the end of things: A concurring opinion in Slaughter by Justice Neil Gorsuch again makes clear his yearning for a more rigorous nondelegation doctrine under which the Court would be empowered to strike down as violative of the separation of powers any grant of policy-making authority that the Court thinks too broad.
The weakening of the Constitution’s First Branch might all seem less worrisome if one thought the Court were evenhanded in dealing with how presidents exercise power. That judgment, however, is difficult to sustain. The Court’s handling of its “shadow docket” and its general record in overseeing the administrations of Joseph Biden and Donald Trump tell a different story. The same Court that reached out to stop the implementation of a Biden-era Clean Power Plan even before the D.C. Circuit could review it has repeatedly turned back lower court orders blocking Trump’s evisceration of government programs as premature. Trump’s big losses have occurred regarding tariffs and birthright citizenship. On tariffs, however, the Court’s majority reached a result that sits comfortably with Republican economic orthodoxy. On birthright citizenship, the Court beat back only by a 5-4 vote a reading of the Fourteenth Amendment that would have been considered marginal, at best, before the Trump Administration. When the Court blocks Trump, its opinions almost always explain how he could accomplish his aims through other processes. Repeatedly, the Court also excuses his racist outbursts as irrelevant to judging whether his immigration policies are tainted by racism.
And perhaps what is strangest of all: The Court writes its decisions on executive power as if the meaning of the Constitution in operation in 2026 could possibly be the same as if we still lived in 1789. Imagine that there were actually a 1789 consensus among all ratifying voters that President George Washington could remove at will any of the relatively small number of public officials on the federal payroll in those early years—officials whose impact on the daily lives of most Americans was presumably quite limited. The “meaning” of such removal power is simply not the same today if the Court gives a president control over an administrative workforce roughly half the size of the entire population of the United States at the time of the Founding—a workforce that polices virtually every aspect of the American economy and society.
The theory of executive power now thrust upon the nation by the Roberts Court has long drawn as its inspiration the dissenting opinion of the late Justice Antonin Scalia in Morrison v. Olson, the case that upheld Congress’s decision to charter an independent counsel system. Scalia, with his customary bluster (but without close analysis), famously wrote that Article II’s vesting of executive power in the President does not “mean some of the executive power, but all of the executive power.” But Scalia also said: “While the separation of powers may prevent us from righting every wrong, it does so in order to ensure that we do not lose liberty.” Under the Roberts Court, however, Americans surely have lost liberty if executive power means what the Slaughter majority tells us it means. And if Congress decides to do something about it? Congress will have to get around the Court’s view that determining what is “necessary and proper” belongs to judges, not legislators.