The Supreme Court Is Poised to Hand Trump More Sweeping Powers to Fire Agency Heads
The conservative justices are risking America's democracy by pushing their ideological notions about the ideal structure of government at a perilous moment
By the time the justices rose from the U.S. Supreme Court bench last Monday, the widespread assumption—one I share—had hardened into near-certainty: The court is going to overrule its 90-year-old Humphrey’s Executor decision. For people who don’t live in the weeds of administrative law, that might sound technical or remote. It’s not. Overruling Humphrey’s is a constitutional and practical earthquake, softened only because the court has sent out foreshocks—warning jolts—in decisions for the past several years.
The result might seem the apotheosis of the court’s embrace of the unitary executive theory—the crisp syllogism that if a power resides in the executive branch, the president must have the authority to remove the officials who exercise it.
Critically, the Supreme Court conservatives’ embrace of the theory looks as if it will be faint-hearted—and thus incomplete. Such a faint-hearted embrace will leave the whole area of law internally contradictory.
To be sure, the likely decision in Trump v. Slaughter will rewrite both constitutional and administrative law and hand the president dramatically greater political control over regulatory functions that touch every aspect of Americans’ daily lives.
Think of the alphabet-soup agencies whose decisions shape everything from your cellphone bill to the chemicals in your drinking water to the fees your bank can charge: the FTC, FCC, CFPB, NLRB, FERC, and SEC. For nearly a century, these bodies have carried out their critical work with a modicum of political insulation: The president could fire their leaders only for cause. The basic idea was to ensure that foundational judgments about fair markets, consumer protection, labor, and environmental safety rested on professional determinations rather than partisan directives.
But the court now stands ready to detonate that balanced arrangement. If—or rather when—Humphrey’s Executor falls, the constitutionally permissible model becomes one in which the president can fire agency heads at will, for any reason at all, including because he dislikes their politics or, as in the case of former Federal Trade Commission member Rebecca Slaughter, the party they belong to.
Last Monday, Justice Elena Kagan advanced a line of questioning that went straight to the heart of the matter. She reminded the solicitor general, arguing on behalf of the president, that Congress’ decision to create independent agencies was part of an explicit structural bargain: Congress delegated substantial policymaking authority precisely because it also imposed modest restraints on presidential removal. The insulation was not a historical accident but the very mechanism that made the delegation tolerable. If Humphrey’s Executor is discarded, the rationale for allowing these agencies to wield sweeping authority evaporates. The executive gains new leverage; the public loses the protections Congress believed essential.
Several justices, beginning with Chief Justice John Roberts, were clearly casting about for a “middle ground” that would allow them to overrule Humphrey’s Executor yet still preserve a measure of political independence for certain agencies—most notably the Federal Reserve. The reason is obvious: Giving President Donald Trump in particular the power to fire the chair of the Federal Reserve on a whim could ignite economic bedlam here and around the world.
But that search for a limiting principle is simply another way of saying that they want to travel 90% down a road that is, in truth, all or nothing. There is no principled basis to exempt the Fed from at-will removal while stripping other expert agencies of insulation. The only justification is the very one the court is otherwise rejecting everywhere else—the need for political independence grounded in technical expertise.
Is there a way to repair the damage that is coming to the balance of our constitutional system of shared power? It’s worth considering what a genuinely big-picture solution might look like—one that would take the court’s own logic seriously and meet it on its own terms.
In theory, Congress could dissolve the independent agencies altogether and rebuild them within the legislative branch, vesting the quasi-legislative (rulemaking) and quasi-judicial (adjudicatory) functions squarely in congressional entities. The executive would retain unfettered control only over tasks that are purely executive in nature: investigation, enforcement, and prosecution. Such a reconstruction would restore formal constitutional clarity: the executive executes, the legislature legislates, and expert policy development and adjudication reside in the branch politically accountable for making law.
This would be a coherent response to the court’s emerging theory. It would preserve the expert regulatory apparatus modern life requires while eliminating the tension the justices now deem constitutionally intolerable. But politically, at least for now, it is impossible. Any such reconstruction would require veto-proof majorities in both Houses of Congress—an unimaginable prospect in the current environment. It is reminiscent of Shelby County, where the court announced that the Voting Rights Act’s coverage formula was no longer justified; Congress could, in theory, have enacted a new one, but everyone understood it would not.
And so we are headed toward a result that goes about seven-eighths of the way toward a full-blown unitary executive regime.
The court appears poised to constitutionalize the harms—the sweeping expansion of presidential control, the loss of expert insulation, the politicization of core regulatory judgments—while shrinking from the implications of arriving at its doctrinal destination. We will be left with agencies that still wield enormous policymaking authority but are now vulnerable to political purge.
It’s a constitutional restructure erected on a flawed foundation that cannot bear its full weight. The instability will plague the law and the administrative state for years to come.
An earlier version of this article first appeared in The Renovator.
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So, the Legislative, the Executive, and the Judicial make up the entirety of the government. The legislative creates laws, within the wording of the constitution, the executive executes them, again within the bounds of the constitution, and the judicial determines whether either of those are acting within the bound of said constitution. There is no fourth branch of unelected technocrats to manage extra executive departments, which is what you are asking for.
The tyranny here was in creating these supra-executive departments, where there is no one responsible to the will of the people. You might not like the decisions made by any given president, but it isn't up to you to decide what is good and right.
Yes. rulemaking is an extension of lawmaking, and is Congress' duty. The President only executes according to the law. The way to solve this: all agency rules get rolled up into at least annual omnibus legislation, which must be passed by Congress and signed the President before they take effect. Perhaps on a per-agency basis.