Daniel Torok/White House/Planet Pix/ZUMA
The Supreme Court on Monday gave the president the authority to remove the leadership of most agencies that Congress had set up to act independently of presidential control. The ruling in Trump v. Slaughter may seem technical, but it represents a radical change in how our American government has functioned since the 1930s and, in some cases, since the founding, by creating agencies that operate with independence from presidential control and the expediency of presidential politics. Rather than allow Congress to decide how much control the president can exercise over an agency that Congress creates, the Supreme Court has seized that power for itself. Starting today, nine justices will decide which agency heads can be fired by the president and which cannot.
Today’s decision overturns a 91-year-old precedent, called Humphrey’s Executor, in which a unanimous Supreme Court upheld Congress’ authority to give independent commissioners protection from presidential removal. In his majority decision, Chief Justice Roberts derides this critical precedent while downplaying the gravity of overturning it. “If anything more is left of Humphrey’s, we overrule it,” Roberts stated in his 6-3 opinion joined by other GOP appointees. “Humphrey’s has for decades been a result in search of a rationale.”
“The one thing that does appear to be clear going forward is that chaos will follow.”
The decision stems from President Donald Trump’s illegal firing of Rebecca Slaughter, a President Joe Biden appointee to the Federal Trade Commission. At the onset of his second term, Trump began firing Democratic appointees to independent agencies in violation of federal law, which protected their removal except for sufficient cause. He removed Biden appointees at the National Labor Relations Board, the Merit System Protection Board, the Consumer Product Safety Commission, among others. These agencies are designed to be insulated from immediate presidential control. They are run by a bipartisan board of commissioners who serve staggered terms. And unlike appointees to cabinet departments, the president cannot remove them over policy differences. The power to remove is the power to control. An impending firing can sway the decision-making of commissioners—and if it doesn’t, they can get the boot.
In a blistering dissent, Justice Sonia Sotomayor warned that chaos will ensue. “Today, the majority reshapes our Government,” she wrote, joined by Justices Elena Kagan and Ketanji Brown Jackson. “Dozens of independent commissions are now likely to become purely executive agencies, shifting tremendous power over broad swaths of American life into the President’s hands.” It does this, she wrote, in the service of the majority’s “half-baked theory of executive power that is simultaneously all encompassing yet also subject to necessary but undefined exceptions. The one thing that does appear to be clear going forward is that chaos will follow.”
The Roberts Court had already chipped away at Humphrey’s Executor, and it was clear that in their quest to realize a so-called unitary executive with dangerous amounts of power and vanishing guardrails around him, it would use this case to knock down the precedent. Roberts does this with gusto. His opinion is a sweeping recitation of all the history he has mustered in his march toward a unitary executive, and relies on his own prior opinions inching toward this very moment—treating his decision as inevitable and right, rather than the result of his own political crusade. Legal historians have long complained that Roberts’ history is a house of cards. This opinion is “embarrassingly thin, full of historical errors and cherry-picked sources,” posted Boston University law professor Jed Schugerman, “reverse engineered from unitary ideology.”
The tricky task for the Republican-appointed majority, however, was how to exempt the Federal Reserve Board, an independent agency upon which rests the stability of the entire economy and which, under presidential control, could tank the markets and plunge the country into even more economic chaos. Indeed, the court in deciding this case while also deliberating whether the president can invent a bogus “cause” to remove a member of the Fed whom he doesn’t like in a blatant attempt to seize control of the agency. Roberts issued that opinion Monday as well, arguing that the Fed is different because of its allegedly unique history and therefore Trump cannot fire targeted governor Lisa Cook without following proper procedures. Roberts left to another day whether the charges against Cook are sufficient, but did reinforce his decision that the Fed’s independence should be maintained.
The solution to this problem—the desire to hand Trump almost unlimited firing power but not when it would cause brutal economic fallout—is to strip Congress of its power to decide when an agency it creates is independent and instead hand that policy determination to themselves. The decision sets up a new regime whereby the justices themselves decide when firing protections are constitutional based on whether an agency’s work falls “within the President’s ‘general administrative control’”—an amorphous standard that surely can be manipulated as the justices see fit. That allows the 6-3 majority today to allow Trump to fire commissioners at the FTC, but preserve Fed independence.
There are other agencies whose independent status and the removability of their commissioners are now uncertain. Congress could try to weigh in, but its decisions are now relegated to suggestions. Roberts’ decision oozes disdain for Congress and alleges that its attempt to insulate agencies from presidential control was an unconstitutional power grab. He cloaks the unitary executive theory as a democratic approach, making all government administration accountable to one man and, ultimately, the people who elect him, even though the Founders intended Congress to be the most democratic branch. The chief justice disagrees. “Placing the power to administer laws in officers who enjoy ‘freedom from Presidential oversight (and protection),’” Roberts writes, “often results only in an ‘increased subservience to congressional direction.’” He continued to accuse Congress of using Humphrey’s Executor to take “more power for itself.”
“The Court takes one of the oldest debates in American history and decides that the six Justices in the majority, alone, ought to be the ones to settle it for all time.”
But in Monday’s opinion, it is the court that hijacks Congress’ power for itself. Now, the justices will decide the fate of each agency’s independent status on a case-by-case basis. This is undoubtedly a question for Congress to decide, but the six justices seize that policy-making authority for themselves. As Sotomayor stated in her dissent, “The Court takes one of the oldest debates in American history and decides that the six Justices in the majority, alone, ought to be the ones to settle it for all time.”
Trump v. Slaughter follows the clear modus operandi of the Roberts Court: disempower Congress, give more power to the president to buck the laws, and leave the nine justices as the only people who can shut down the president’s actions. The most infamous example is the court’s grant of criminal immunity to the president. Just as presidential immunity breeds corruption and political weaponization, this one will likewise turbocharge Trump’s ability to reward allies and donors and punish political enemies at the expense of good governance.
From approving mergers and regulating Wall Street and Crypto to determining which toys are safe for babies, independent agencies play a critical role in regulating the economy, the environment, our jobs, and the objects we rely on every day. Handing these decisions to donors or weaponizing them for political gain will line some pockets but almost certainly harm the public.
The Roberts Court claims to be an originalist court, basing its constitutional rulings on the document’s original public meaning. But ever since the Roberts Court’s hard turn toward unitary executive theory—the idea that the president has unrestricted authority over the entire executive branch—and its movements against independent agencies, scholars have gone back to the archives to investigate the originalist bona fides of these related judicial trends. It turns out that there is little historical evidence for a unitary executive (and mountains of evidence against) and that there are many instances of independent agencies in the founding era and the 19th century. They are not an invention of the New Deal, even though that is the time in which they grew in number and significance—and is indeed the era this court seeks to erase from the law books.
In her dissent, Sotomayor recounts the history that the majority eschews, demonstrating how Roberts’ opinion relies more on discredited fictions than sound history. “From the start, the majority’s theory rested on shaky ground,” she wrote. “Over time, its arguments have grown weaker still, as historical evidence has undermined key pillars of its theory. Today, the Court faced a choice: plow ahead… Unfortunately, the Court repeats and expands upon several prior errors that require correction.”
The historical anomaly is not independent agencies or presidents with limited authority, as Roberts asserts. It’s this court and the Trump actions it blesses.
