JUST BEFORE America’s 250th birthday, the Supreme Court handed Donald Trump a power no other president has possessed in almost a century: the ability to fire every independent commissioner in the executive branch at will. The decision in Trump v Slaughter may not have been as revolutionary as American independence from Britain, but it ushers in momentous changes in the powers of the presidency, and with it, the potential for abuse of presidential power.
Federal commissioners perform dozens of other functions that Congress deliberately shielded from partisan control (Reuters)
This is no mere personnel dispute. Federal commissioners perform dozens of other functions that Congress deliberately shielded from partisan control: regulating securities markets, overseeing nuclear safety, policing commodities trading. In all, over two dozen agencies could be affected by the ruling.
Congress may have charged these commissioners to act on a bipartisan basis, but the president now has the power to remove any commissioner who is not an ally, potentially rendering these agencies more partisan or inoperable. Courtesy of the Supreme Court, future Republican and Democratic presidents now have a powerful new tool to bully otherwise bipartisan commissions: toe the party line, or the president will remove you.
Whether this ruling threatens American democracy depends on how future presidents use it. One can easily imagine that the current president’s instinct for bold, headline-grabbing moves would tempt him to issue an executive order firing all independent commissioners with ties to the Democratic Party. There are reasons to think that might not happen. First, Mr Trump has believed he had this power all along, and he has not yet wielded it to that extent. And although he dismissed some regulators, he did not fire hordes of nuclear or financial regulators—perhaps because the political and market consequences would have been too severe.
Americans should still worry that this ruling invites presidential abuse. In 2024 the Supreme Court immunised the president from indictment based on his actions related to the attack on America’s Capitol on January 6th 2021. In that case, the court said a lot more about presidential power than necessary, announcing broad “conclusive and preclusive powers” on pardons and prosecutions. Since then, those powers have been abused: we have seen vindictive prosecutions, threats to remove Jerome Powell, the former chair of the Federal Reserve, and billion-dollar pay-to-play pardon schemes. Now, we have to wonder whether the Slaughter power will invite similar corruption and abuse.
Imagine a president determined to dismantle financial regulation. He could remove the leadership of the Securities and Exchange Commission (SEC) or the Commodity Futures Trading Commission (CFTC) and replace them with ideological allies. Imagine a president who seeks campaign contributions for not removing a well-heeled commissioner. Or perhaps the president never fires a commissioner at all. The threat may be enough. Independent agencies were designed to make decisions free from partisan pressure. After Slaughter, every commissioner knows that independence lasts only so long as the president permits it.
Similarly troubling is what this ruling means for elections. An autocratic president need not purge every independent agency; he need only target those that affect his ability to remain in power. The Federal Election Commission and the Election Assistance Commission, both created by Congress to operate independently, are potentially covered by this ruling. Although the constitution leaves elections largely to the states and Congress, this ruling allows Mr Trump to remove commissioners from both agencies. If he does, will he replace them with loyalists who deny that he lost the 2020 election, as he has done elsewhere in government?
In a separate case decided on June 29th, the court exempted the Federal Reserve on originalist grounds, reasoning (as Chief Justice John Roberts did in his majority opinion) that because the first Congress created the Bank of the United States in 1789, Congress may shield the Federal Reserve from direct presidential control. In a 5-4 ruling, the court blocked Mr Trump from removing Lisa Cook from the Fed’s board of governors.
Some will welcome that decision. But the “Fed exception” raises its own questions. Historians may differ on whether the court got the history right. The justices have often assumed that independent commissions emerged late in the 19th century. Yet newly digitised records reveal several multi-member federal commissions in the republic’s earliest years. Congress charged them with settling revolutionary war debts and managing the country’s finances; their members took oaths of impartiality and Alexander Hamilton himself described them as “independent”. Only the dissenters were moved by this history.
Others will question whether the Fed exception makes practical sense. Slaughter allows the president to remove commissioners of the SEC and CFTC, even though many financial experts see little institutional difference between those agencies and the Federal Reserve. The statutes governing them use different language, but those distinctions seem difficult to reconcile with the court’s broad view of presidential removal power.
The Supreme Court justified Slaughter in the name of democracy. By concentrating power in the elected president, the majority argued, the government becomes more accountable to the people. Yet that rationale turns “We the People” on its head. Concentrating power in the presidency may encourage presidents to cater to their political base rather than build broader public support. That concern extends beyond the court’s critics. Even some proponents of the “unitary executive” theory—the belief that the president should exercise complete control over the executive branch—now warn that the court has gone too far in expanding presidential power.
Victoria Nourse is the Whitworth Professor of Law at Georgetown Law Centre.
