On Monday the Supreme Court will hear oral arguments in Trump v. Slaughter, a case that will decide whether to grant the president, for the first time in American history, the power to fire the heads of virtually all independent agencies at will. This would be a vast transfer of power from Congress to the president.
The Constitution doesn’t explicitly grant the president any such power, and nearly a century ago, the court unanimously rejected an argument that the president possessed it. Today’s Republican-appointed justices appear to be firmly under the sway of an atextual and ahistoric theory — the unitary executive theory — that demands complete presidential control over essentially every government agency and insists that the power to fire agency heads at will is an indispensable part of such control.
Congress has made a range of choices when it comes to creating, structuring and empowering federal agencies; some have been given a degree of independence from the president. Giving a president complete control would have a profound impact on how our government functions and the ability of these agencies to do work that touches the lives of practically every American. It could undermine, in tangible and immediate ways, agencies’ ability to safeguard consumers’ privacy, ensure the rights of workers and unions, minimize the hazards posed by ordinary household products and more.
In his brief in Slaughter, President Trump insists that the Constitution grants him, as part of his core powers, the ability to remove agency leaders at will. (In this case, he is trying to remove Rebecca Slaughter from the Federal Trade Commission.) He further maintains that “the president’s removal power extends to heads of multimember administrative agencies” like the F.T.C.
The F.T.C., created in 1914 with a dual mandate to protect consumers and promote competition, is known as a multimember agency because it is headed by five commissioners who serve staggered seven-year terms, with no more than three of the five from the same political party. Critically, these commissioners can be removed only for “inefficiency, neglect of duty or malfeasance in office.” This means that every president since the creation of the F.T.C. — that is, since Woodrow Wilson — has had to tolerate commissioners not of their party and not of their choosing.
Mr. Trump is hardly the first president to chafe at this arrangement. The 1935 Supreme Court case that has structured how presidents interact with these agencies — Humphrey’s Executor v. United States — arose from efforts by President Franklin D. Roosevelt to remove a commissioner, William Humphrey, from the F.T.C.
Mr. Humphrey was a former representative, loyal Republican Party operative and corporate lobbyist appointed to the F.T.C. in 1925 and again in 1931. His appointment was met in reform quarters with dismay. A senator from Nebraska is reported to have called him “the greatest reactionary of the country.”
Roosevelt evidently shared this assessment and, after his March 1933 inauguration, twice requested Mr. Humphrey’s resignation — and was twice rebuffed by the commissioner. In a letter dated Oct. 7, 1933, the president took a different tack: “Effective as of this date you are hereby removed from the office of commissioner of the Federal Trade Commission.”
Mr. Humphrey decided to fight his removal in court. He died shortly after filing suit, but his estate maintained the case (hence its name).
On May 27, 1935, the Supreme Court ruled unanimously against Roosevelt, upholding the law limiting the president’s removal power. As the court reasoned, the F.T.C. was, by design, nonpartisan, “charged with the enforcement of no policy except the policy of the law” and headed by members “called upon to exercise the trained judgment of a body of experts.”
In its decision, the court said a rule that such commissioners served “at the mere will of the president” would undermine congressional design; it would “thwart, in large measure, the very ends which Congress sought to realize by definitely fixing the term of office.”
The court’s reasoning has been subject to criticism in recent years. Justices on the current court have questioned the opinion’s description of the F.T.C.’s work as not executive but “predominantly quasi-judicial and quasi-legislative.” The Humphrey’s Executor court wasn’t entirely successful in its efforts to distinguish the case from an important 1926 decision, Myers v. United States, which confirmed the president’s power to remove a postmaster without first consulting the Senate, as a statute had required.
But Humphrey’s Executor still set down a powerful and important rule: It is sometimes permissible for legislation to create expert agencies designed to operate at a remove from the president and from politics. The opinion has become part of the foundation of an administrative state that credits the values of expertise and nonpartisanship, in a modern world with all its complexities and demands on deep knowledge that often go beyond the capacity of Congress, even as it balances those values against democratic responsiveness. And it is an important part of the landscape in which Congress has chosen to empower agencies to engage in policymaking to a degree consistent with congressional mandates (elected officials, remember, set the terms of engagement and direction for the agencies) but also responsive to changing terrain.
Over the past 15 years, the Roberts court has narrowed the rule of Humphrey’s Executor, concluding that some independent agency structures unduly encroach on presidential power, in particular when an agency is headed by a single member. That was the basis on which the court in 2020 invalidated the original single-commissioner leadership structure of the Consumer Financial Protection Bureau.
Mr. Trump swept into office for the second time determined to destroy agency independence. Though in 2018 he appointed Ms. Slaughter to one of the Democratic seats on the F.T.C., it is not surprising that he would target her: She formerly served on the staff of Chuck Schumer, the Senate Democratic leader, and she is fiercely committed to agency independence.
At a recent event, Ms. Slaughter offered her views about the importance of independence to the F.T.C., referencing an image from Mr. Trump’s inauguration. President Trump was surrounded by the leaders of some of the largest companies in the United States. “I looked at that picture and thought: ‘Wow. The F.T.C. is in active litigation against almost every single one of those companies right now. And they are the ones flanking the president at his inauguration,’” she said.
This, in a nutshell, is the reason to have agency independence. It’s also the reason agency independence is so threatening to the sort of regime Mr. Trump appears to be trying to create, in which all of government is a mere extension of the president.
We can see clearly what’s at stake in Trump v. Slaughter by the agency’s recent business — before the president’s firings of Ms. Slaughter and the other Democratic commissioner, Alvaro Bedoya, ground some of its enforcement activities to a halt. Last year, the F.T.C. announced a challenge to prescription drug managers over insulin prices, which the agency said were inflated as a result of anticompetitive and unfair practices. The case was pending in the F.T.C. when Mr. Trump’s firings deprived the agency of a quorum. This meant that the action could not move forward.
The same dynamic has played out in other agencies, including the Consumer Product Safety Commission, where Mr. Trump has also fired the Democratic commissioners and derailed actions to protect consumers. To take just one example, in 2023 the commission proposed rules designed to mitigate the significant risks of carbon monoxide from boilers and furnaces, as well as portable generators. Both proposed rules were essentially finished when Mr. Trump fired the Democratic commissioners, but they now seem to be dying a quiet death.
The presence of Democratic commissioners wouldn’t have necessarily changed the outcomes in any of these matters. But they probably would have supplied perspectives that would have urged the agency to take more consumer-protective positions — and could have alerted the public if they believed the agency was acting improperly.
Despite Mr. Trump’s claims, presidential power is not so fragile that a few Democratic appointees at an agency like the F.T.C. pose a mortal threat to it. Presidents have a range of tools that allow them to influence the work and direction of agencies across the federal government, whatever the structure of any particular agency.
But having voices that represent workers and consumers in a Republican administration — or that reflect the views of business in a Democratic administration — is a small but significant way to ensure a degree of continuity across administrations, to make sure that opposing positions are considered in regulatory processes and to prevent regulatory agencies from becoming the president’s playthings.
If lawmakers no longer wish to see those values reflected in federal agencies, they can pass laws changing them. But the Constitution gives Congress, not the court, that choice to make.
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