The Supreme Court Is Going To Slaughter Independent Agencies

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Rarely does a blockbuster case that would radically alter the balance of power between the president and Congress come before the Supreme Court in which the outcome is already well-known. But that’s the case in Trump v. Slaughter, which the court will hear Monday, where President Donald Trump is asking the court to expand his autocratic push by handing him the power to fire independent agency officials at will.

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The case emerges from Trump’s mass purges of Democratic appointees from independent agencies across the executive branch. These officials are, technically, protected from being removed unless it is “for cause” by the laws Congress passed to create the agencies, under a precedent known as Humphrey’s Executor. These for-cause removal protections, meant to preserve the independence of these “quasi-judicial” and “quasi-legislative” agencies from the whims of the president, were upheld by the Supreme Court in a 1935 case from which the precedent takes its name.

The case now centers around one of those fired officials, Federal Trade Commission member Rebecca Slaughter. She sued the Trump administration charging that, under Humphrey’s Executor, she could not be fired unless for cause and she should be reinstated into her position on the FTC. Lower courts agreed. But Trump appealed to the Supreme Court where the court’s six conservative justices sided with the president for the short term, allowing Slaughter to be removed while they heard the case.

It was, in effect, a signal that they would overturn Humphrey’s Executor, ending all independent agencies across the executive branch —  and handing Trump even more of the autocratic power he has already begun to exercise.

Without for-cause removal protections, a president could fire officials if they do not enact policies he desires. It would hit a variety of agencies that traditionally have the power to work on their own without presidential input: the FTC, Federal Reserve Board System, Federal Communications Commission, Federal Election Commission, National Transportation Safety Board, Securities and Exchange Commission and the Nuclear Regulatory Commission would all be at risk.

While these agencies may sound like an alphabet soup, the potential trickle-down impact to Americans is enormous. Loosening protections for officials on these bodies means that the president would be able to force these agencies to launch investigations, issue fines, approve mergers or sales, grant or take away broadcast licenses and, most controversially, set interest rates for the whole economy. Agencies that are meant to do things like track the economy, regulate nuclear power, and even maintain transportation safety regulations would suddenly be more beholden to the president’s desires than the needs of the public.

It is the pinnacle of Trump’s bid to consolidate even more power, this time truly at the expense of the American people.

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Overturning Humphrey’s Executor is the crown jewel for proponents of the legal argument known as the unitary executive theory. This theory, rooted in a fraudulent originalist interpretation of the Constitution, argues that the president has sole control of the entire executive branch and that neither Congress nor the judiciary can limit how he uses his constitutionally granted powers to direct any entity within the executive branch.

The argument in favor of this theory, which the Trump administration makes in the Slaughter case, is that the Constitution vests the “executive Power … in a President” who must “take Care that the Laws be faithfully executed.” If the president is meant to execute the laws, then he must be vested with total power over the entirety of the executive branch. Or so the theory goes.

This was most explicitly approved by the Supreme Court in two recent cases: Seila Law v. Consumer Financial Protection Bureau in 2020, which stripped the head of the CFPB of for-cause removal protections, and Trump v. U.S. in 2024, which placed the president above the law by giving him immunity from criminal prosecution for most official acts.

“Under our Constitution, the ‘executive Power’—all of it—is ‘vested in a President,’ who must ‘take Care that the Laws be faithfully executed,’” the majority decision in Seila Law stated. Adding, “Without such power, the President could not be held fully accountable for discharging his own responsibilities.”

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In Trump v. U.S., which dealt with whether presidents had immunity from criminal prosecution, a key point of debate was whether Trump could be prosecuted for attempting to purge the Department of Justice and install a crony willing to help him steal the 2020 election. The decision, written by Chief Justice John Roberts, ruled that he could not because the president’s “exclusive power of removal in executive agencies” is one of his “conclusive and preclusive” powers that cannot be regulated by Congress or judged by the courts.

These decisions build directly to what the court’s conservatives will do in Slaughter: kill off the independent agencies that Congress created, and eliminate their ability to block presidential agendas.

The unitary executive theory was invented by the conservative legal movement for this very purpose. It traces back to the challenges that Republican presidents Richard Nixon and Ronald Reagan had in trying to undermine the purposes of regulatory agencies created by Congress, which had been fully controlled by Democrats from 1957 until 1981.

In Nixon’s second term, he sought to wrest control of an administrative state created by liberal Democrats in order to steer it away from its purpose. His overreach and ultimate downfall in the Watergate scandal led Congress to fight back and further restrain the presidency.

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Conservatives viewed these efforts to restrain the president as the actions of an Imperial Congress. They also increasingly viewed the administrative state as a tool of liberal priorities like environmental regulation, civil rights enforcement and consumer and worker safety. Civil servants working to achieve the liberal goals of these congressionally created agencies could undermine the goals of a conservative president, like Reagan. The only way to counter this was an all-powerful president. And so, conservatives in the Reagan administration invented the unitary executive theory.

“We were strong proponents of the theory of the unitary executive, that all federal executive power is vested by the Constitution in the president,” Justice Samuel Alito, who served in Reagan’s Office of Legal Counsel, said at an event for the conservative Federalist Society in 2000. “And I thought then, and I still think, that this theory best captures the meaning of the Constitution’s text and structure.”

The theory’s first real test failed in 1988 when the Supreme Court rejected Reagan’s attempt to invalidate the independent counsel statute created after Watergate in Morrison v. Olson. But then-Justice Antonin Scalia’s dissent, which said that the independent counsel statute infringed on a “purely executive power,” became scripture for the unitarians who now dominate the conservative legal movement and the Supreme Court.

Despite claims to an interpretation of the original meaning of the Constitution, the unitary executive theory, particularly as it appears in the Slaughter case, is not based in a factual interpretation of history. In seeking to overrule the precedent in Humphrey’s Executor, the unitarians, as in Scalia’s Morrison dissent, claim that the decision’s declaration that Congress can make “quasi-judicial” and “quasi-legislative” agencies independent through for-cause removal protections is erroneous. As a brief filed in the Slaughter case by a group of historians shows, that is itself wrong.

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“These critiques are contradicted by the historical record. As Humphrey’s Executor noted, the concept that some offices have hybrid functions that may warrant restrictions on removal power is traceable to James Madison,” the brief from historians Noah Rosenblum and Nathaniel Donahue states.

The brief goes back to the creation of the Comptroller of the Treasury during the First Congress in 1789, which Madison declared was not “purely of an executive character” and took actions “of a judicial quality.” Therefore, Congress could restrain the president’s direct influence over the agency.

“[T]here may be strong reasons why an officer of this kind should not hold his office at the pleasure of the executive branch of the government,” Madison wrote.

Similarly, historians have shown that Congress insulated officials from presidential removal as early as the Founding, citing commissions like the Sinking Fund Commission and the Revolutionary War Debt Commission.

Furthermore, the Supreme Court repeatedly referred to such agencies as “quasi-judicial” or “quasi-legislative” as the administrative state was created and upheld by the courts during the late-19th and early-20th centuries.

And while the unitarians continue to assert that “quasi-judicial” and “quasi-legislative” agencies are a fiction in the face of the historical record, they also undermine their own argument by inventing carveouts that have nothing to do with legal theory.

That has been most clear on the big question looming over the end of for-cause removal protections: what to do about the Federal Reserve? No other agency has as much power over the whole country as the Federal Reserve does, through its power to set monetary policy through interest rates. Control by a president, rather than a committee of economic experts, is widely viewed as dangerous for markets not just in the U.S. but around the world. When the court addressed this question in a similar case brought by a National Labor Relations Board member fired by Trump, it created its own entirely new rationale to prevent the president from obtaining the power to seize total control of the Federal Reserve and set interest rates for the whole economy.

“The Federal Reserve is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States,” according to the majority decision from the court’s conservatives in Trump v. Wilcox that stayed a lower court order.

In dissent, Justice Elena Kagan blasted this “out of the blue” assertion by the conservatives as having no legal basis. “[T]he Federal Reserve’s independence rests on the same constitutional and analytic foundations as that of [other independent agencies] – which is to say it rests largely on Humphrey’s [Executor],” Kagan writes.

However the court’s conservatives choose to contort themselves to protect the Federal Reserve as they kill independent agencies, this won’t be the end of this question. The court hears the case of Federal Reserve Board Governor Lisa Cook, who was supposedly fired by Trump based on made-up charges of mortgage fraud, in January.

The ultimate outcome in Slaughter’s case, however, is effectively known. The court will kill independent agencies. In doing so, it will have — yet again — handed Trump unprecedented autocratic power to assert his will across the government. The consequences of this monumental decision can already be seen in Trump’s increasingly authoritarian administration.

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