The Supreme Court today restored an old-fashioned constitutional idea: if a principal federal officer exercises executive power, the president must be able to remove him. The justices’ 6–3 ruling in Trump v. Slaughter, which struck down a law prohibiting the president from firing members of the FTC except for cause, is the logical endpoint of a 15-year series of cases that have steadily chipped away at Humphrey’s Executor, the 1935 decision that blessed for-cause removal protections for the heads of so-called independent agencies.
The Court didn’t mince words. Chief Justice John Roberts wrote that “Humphrey’s framework, in short, has not withstood the test of time.” Then came the sentence that will launch a thousand administrative-law articles: “If anything more is left of Humphrey’s, we overrule it.” The New Deal compromise that invented quasi-legislative agencies has finally met Article II of the U.S. Constitution.
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That’s good, because the Federal Trade Commission isn’t a debating society. It, along with its alphabet-agency brethren, writes rules with the force of law, investigates private parties, adjudicates violations, and sues in federal court on behalf of the United States. Whatever labels Congress attached to that body in the Progressive Era, the FTC—like the FCC, SEC, NLRB, and so on—today exercises executive power. And the Constitution vests “the executive power” in one president, not in commissioners serving staggered terms, answerable to no one whom voters can fire.
This ruling isn’t a gift to Donald Trump or his successors. It’s a restoration of constitutional accountability. Congress can create executive-branch agencies and specify what they may do, but it cannot create a fourth branch of government and then pretend its officers are independent of the only person the Constitution makes responsible for executing federal law.
Roberts put the point crisply at the end of Slaughter: “Subordinates who exercise the President’s power are subject to removal by him.” That’s a unitary, not an imperial, presidency, and it’s a hallmark of republican government. The president remains constrained by statutes, appropriations, courts, Congress, elections, and the Constitution itself. If the people dislike how the FTC enforces the law, they should be able to blame—and replace—the president, not chase a goulash of insulated mandarins.
Justice Neil Gorsuch’s concurrence adds the important next step. Killing Humphrey’s Executor doesn’t cure every constitutional disease in the administrative state. It simply reallocates the power Congress poured into independent agencies. As Gorsuch warned, “the fourth branch’s powers still exist; they have just been reassigned to the President.” If agencies possess vast legislative and judicial authority, the answer isn’t to hide those powers from presidential control, but to restore legislative powers to Congress. Make Congress great again!
Trump v. Cook, decided alongside Slaughter, is the necessary complication. By a 5–4 vote, the Court blocked, for now, Trump’s attempt to remove Lisa Cook from the Federal Reserve Board of Governors. The Fed is different—not because central bankers are philosopher-kings, but because central banking has a historical pedigree unlike that of modern enforcement agencies. The Court held that the Fed follows the tradition of the First and Second Banks of the United States, whose independence was tied to Founding-era concerns about political manipulation of monetary policy. Monetary policy is not antitrust enforcement or securities regulation.
Still, Cook is an unsatisfying resolution. The Court denied the government’s stay application and left Cook on the board for now, but it didn’t finally decide whether Trump had cause to remove her. Indeed, the majority emphasized that “the ultimate question of whether the President can remove Cook for cause will depend in part on the underlying facts,” which have not yet been found. Nor did it bless the government’s process. Cook was entitled, the Court said, to “some explanation of the evidence at issue, some avenue for a response, and a deadline by which a response would be due.”
Justice Samuel Alito, joined by Gorsuch, had the better procedural point. This was a stay application, not a merits case. As Alito wrote, the Court should have granted or denied it “in a brief order last fall.” Instead, the justices took full briefing, held argument, deliberated for months, and produced an opinion that still sends the factual dispute back where it belonged all along: the trial court. The emergency docket has become the interim-relief docket, and sometimes interim relief requires interim modesty.
Taken together, Slaughter and Cook draw the right constitutional map. The FTC and similar agencies sit within the executive branch and must answer to the president. The Federal Reserve remains a narrow historical exception, and even there President Trump can try again if he supplies process and proves cause.
In a republic, the people whom we elect should govern. The buck should stop with the president, not assorted boards of independent bureaucrats.