The constitutional balance of power within the federal government is poised for a significant transformation, as the Supreme Court appears ready to dismantle a nearly century-old legal doctrine that has long protected the independence of federal agencies. The case of Trump v. Slaughter, which challenges the firing of a Federal Trade Commission member, has become the crucible for the 1935 precedent set in Humphrey’s Executor v. U.S. During pointed oral arguments, the court’s conservative majority voiced profound skepticism about the legitimacy of regulatory bodies whose leaders are insulated from direct presidential oversight. This line of questioning strongly suggests an impending decision that will grant the president at-will removal authority, thereby concentrating substantial power within the executive branch and fundamentally altering the functioning of the administrative state. The outcome of this case promises to redefine the relationship between the White House and the myriad of agencies that regulate vast sectors of the American economy and daily life.
A Foundational Precedent Under Fire
At the heart of the legal battle lies a direct challenge to the enduring relevance of the Humphrey’s Executor decision, which has historically affirmed Congress’s authority to establish for-cause removal protections for officials at the helm of commissions like the FTC. Chief Justice John Roberts led a pointed critique, characterizing the 90-year-old ruling as a “dried husk of whatever people used to think it was,” implying that its legal foundations have been hollowed out by decades of subsequent jurisprudence. He argued that the original context of the decision is no longer applicable to the modern administrative state. The New Deal-era FTC, he noted, was a “vanishingly insignificant” entity compared to the powerful, far-reaching agency it has become today. This argument suggests that the very conditions that once justified a degree of agency independence from the executive have ceased to exist, rendering the precedent an anachronism in the face of contemporary governmental realities. The court appears to be weighing whether a legal shield forged in a different era can still apply to the powerful regulatory bodies of the 21st century.
Building on the theme of obsolescence, Justice Neil Gorsuch launched an even more fundamental assault on the precedent, questioning its constitutional validity from its inception. During a sharp exchange with counsel for the fired commissioner, Gorsuch posited that Humphrey’s Executor was “poorly reasoned” from the beginning and had the unconstitutional effect of creating an illegitimate “fourth branch” of government. He contended that this structure established entities that were not fully accountable to the President, Congress, or the judiciary in the manner envisioned by the Constitution’s separation of powers. This perspective reframes the debate from a simple question of an outdated ruling to a matter of correcting a core constitutional violation. By insulating agency heads from presidential removal, Gorsuch argued, the precedent had improperly fractured executive authority, creating a class of powerful officials who wield significant power without being answerable to the elected head of the executive branch.
Navigating a Path Forward
Justice Gorsuch further expanded the constitutional inquiry by connecting the issue of removal power to the broader doctrine of congressional delegation, raising the prospect of reviving the long-dormant “intelligible principle” standard. This legal test requires Congress to provide a clear and discernible principle to guide an agency when it delegates its legislative authority. Gorsuch articulated a critical trade-off that the court has implicitly managed for decades: it has permitted Congress to delegate vast, often vaguely defined, legislative powers to federal agencies. He argued that if these same agencies, which he described as possessing immense executive power, are now to be brought fully under the president’s control via at-will removal, then it becomes “all the more imperative” for the court to revisit and more strictly enforce limits on the scope of authority Congress grants them in the first place. This line of reasoning suggests the court’s decision could have cascading effects, potentially forcing Congress to be far more specific in its legislative mandates to the administrative state.
Despite the sweeping constitutional critiques that dominated the arguments, the justices also signaled a preference for a precise and contained remedy that would avoid a wholesale dismantling of the federal regulatory apparatus. The legal doctrine of “severability” emerged as the most probable course of action. This approach would allow the court to surgically excise the unconstitutional for-cause removal provisions from the statutes that created the independent agencies, while leaving the rest of their structures, functions, and legal mandates intact. Justice Brett Kavanaugh, in an exchange with the Solicitor General, emphasized that the court had successfully employed this targeted method in past cases involving similar removal protections, all without jeopardizing the continued existence of the affected agencies. Solicitor General John Sauer, arguing on behalf of the administration, reinforced this view, assuring the justices that a ruling favoring the president would not spell the end for multimember commissions like the National Labor Relations Board, indicating a consensus around a solution that recalibrates power without inducing systemic chaos.
The Reshaping of Executive Authority
The oral arguments in the Slaughter case served as a clear indicator of the judiciary’s direction, situating this legal challenge as a focal point in a much broader campaign to assert greater executive control over the federal bureaucracy. This effort was not isolated, as evidenced by similar lawsuits filed by other fired officials, including a former member of the National Labor Relations Board and a commissioner from the Equal Employment Opportunity Commission. The court’s majority demonstrated a clear preparedness to deliver a decisive victory to this campaign by dismantling a foundational pillar of agency independence that had defined American administrative law since the New Deal era. Ultimately, the court seemed poised to rule that the president must possess the authority to fire the leaders of these powerful regulatory bodies at will. Such a decision would fundamentally remake the landscape of federal governance, making these agencies more directly accountable to the executive branch and ushering in a new chapter in the perennial struggle over the separation of powers.
