Supreme Court Poised to Hand Trump Sweeping Power Over Independent Agencies

A Constitutional Showdown 90 Years in the Making

The Supreme Court on Monday signaled that it was likely to strike down a federal law that restricts the president's ability to fire members of the Federal Trade Commission, with a solid majority of the justices appearing to agree with the Trump administration that a law prohibiting the president from firing FTC commissioners except in cases of "inefficiency, neglect of duty, or malfeasance in office" violates the constitutional separation of powers . The case arose from Mr. Trump's move to fire Rebecca Kelly Slaughter from her post at the Federal Trade Commission without cause, despite a federal statute that limits a commissioner's removal to instances of inefficiency, neglect of duty or malfeasance in office .

The high court is set to decide whether those removal protections for members of the FTC violate the separation of powers, and whether it should overturn a landmark 1935 decision in a case called Humphrey's Executor v. United States . Chief Justice John Roberts characterized the decades-old precedent as "just a dried husk of whatever people used to think it was" , signaling the court's conservative majority may be ready to abandon protections that have shielded independent agencies from political interference for nearly a century.

Appointed to the FTC by Mr. Trump in his first term and reappointed by former President Joe Biden, Slaughter received an email in March with a message from the president informing her that her "continued service on the FTC is inconsistent with my Administration's priorities" . Her legal battle has become the vehicle for a much broader constitutional confrontation over presidential power.

The Unitary Executive Theory Takes Center Stage

Trump's legal team has fully embraced a conservative legal argument called the "unitary executive theory," which asserts that the president has the exclusive authority under Article 2 of the Constitution to exert executive power, including making regulatory decisions . The idea advanced there was that all executive branch personnel are "subject to the ongoing supervision and control of the elected President," and it follows that the President must be able, directly or indirectly, to fire anyone in the executive branch .

The Trump administration argued in filings that the Constitution vests all executive power in the president and therefore grants him "illimitable" authority over officers who wield that power on his behalf . Solicitor General D. John Sauer explicitly called for the justices to overrule Humphrey's Executor, contending it was "grievously wrong" when decided and has "not stood the test of time" .

The court's conservatives were more receptive to the Trump administration's arguments, with Justice Brett Kavanaugh stating "I think broad delegations to unaccountable independent agencies raise enormous constitutional and real-world problems for individual liberty" . Justice Neil Gorsuch said the Humphrey's ruling was "poorly reasoned" and suggested he would be a vote to overturn it, declaring "There's no such thing in our constitutional order as a fourth branch of government that's quasi-judicial and quasi-legislative" .

Far-Reaching Consequences for Government Structure

If the Supreme Court invalidates the removal protections for FTC commissioners, such a decision is likely to reach far beyond the commission, because many statutes restrict a president to removing an official for inefficiency, neglect of duty and malfeasance in office, meaning "all the other agencies with those words will be in the same boat" . There are roughly two dozen other independent agencies that have similar removal statutes, including the Consumer Safety Protection Commission and the National Labor Relations Board, the Merit Systems Protection Board .

Since January, Trump has also removed Democratic members from some of those agencies, including the Equal Employment Opportunity Commission, the Merit Systems Protection Board and the Consumer Product Safety Commission . The outcome in the Slaughter case will determine whether or not there will be any Democrats left on the FTC or other regulatory bodies, and whether any of the other independent agencies will be truly "independent" any longer .

Justice Sonia Sotomayor warned Trump administration Solicitor General John Sauer: "You're asking us to destroy the structure of government" . Justice Elena Kagan recently warned it could mean the end of administrative governance as we know it, noting that "Humphrey's undergirds a significant feature of American governance: bipartisan administrative bodies carrying out expertise-based functions with a measure of independence from presidential control" because Congress "thought that in certain spheres of government, a group of knowledgeable people from both parties – none of whom a President could remove without cause – would make decisions likely to advance the long-term public good" .

The Future of American Governance

As for what judicial endorsement of the unitary executive theory could mean in practice, Trump seems to hope it will mean total control and hence the ability to eradicate the so-called "deep state," while other conservatives hope it will diminish the government's regulatory role . The president could control independent agencies such as the