WHEN FRANKLIN ROOSEVELT encountered resistance to his New Deal policies from William Humphrey, a commissioner at the Federal Trade Commission (FTC), he sacked him via a one-line letter. But Humphrey would not go gently. He challenged his removal and won a posthumous victory at the Supreme Court. For nearly a century, the court adhered to the precedent set in Humphrey’s Executor v United States, which held that Congress could protect the commissioners of independent agencies from direct presidential control.
US President Donald Trump (REUTERS FILE)
On June 29th the court overturned that precedent in Trump v Slaughter. By a 6-3 vote along ideological lines, it swept aside the protections established by Humphrey’s Executor. Donald Trump is scarcely mentioned in the court’s 108 pages of opinions. But he now possesses a power he once exercised with glee on reality television: sacking subordinates at will. How aggressively he uses that authority will help define the next chapter of his presidency. After the ruling, he celebrated it on Truth Social as “the Greatest Increase in Presidential Power in the last 100 years”.
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Chief Justice John Roberts wrote the majority opinion, joined by the court’s five other conservatives. The framers of the constitution vested the executive power “in one person”, wrote the chief. Subordinate officials are “subject to removal by him” and thus “accountable to the president, and the president to the people”. The passage is as concise a statement as any of the unitary executive theory, a vision of expansive presidential power that has shaped conservative legal thought for decades.
In the late 1980s Justice Antonin Scalia cut a lonely figure on the Supreme Court, arguing in favour of the theory. But as like-minded justices joined the bench, the court chipped away at Humphrey’s Executor. In a 2020 case involving the Consumer Financial Protection Bureau, it gave presidents greater freedom to fire the heads of single-director independent agencies. A year later, in a similar case involving the Federal Housing Finance Agency, it extended that ruling. But it left in place protections for multi-member agencies like the FTC. With Slaughter, those are gone. “If anything more is left of Humphrey’s, we overrule it,” wrote Mr Roberts. “Humphrey’s has for decades been a result in search of a rationale.”
In a scathing dissent that she summarised from the bench—a mark of unusual pique—Justice Sonia Sotomayor, joined by her liberal colleagues, Justices Ketanji Brown Jackson and Elena Kagan, argued that the majority’s position had “very little support” in history or precedent. She accused the majority of replacing nine decades of settled practice with a “half-baked” theory. “The one thing that does appear to be clear going forward,” she wrote, “is that chaos will follow.” She warned that the ruling would upend agencies built on the understanding that some decisions should be made by bipartisan bodies with expertise and a measure of independence.
The dissenters also warned of a wider blast radius. Slaughter casts doubt on the statutory protections afforded to inferior officers—and perhaps even to swathes of the 2m-strong civil service. Many of those employees, after all, exercise at least some executive power. Mr Trump has already fired thousands of federal employees; the question now is whether Congress can impose any limits on their removal. The president’s own reaction suggested he grasped the ruling’s breadth. He has previously argued that Article II of the constitution, which outlines the powers of the executive branch, allows him to do “whatever I want”.
The Fed exception
The court nevertheless carved out one striking exception to its theory of executive power. In a separate opinion in Trump v Cook, it refused, for now, to let Mr Trump remove Lisa Cook, a Federal Reserve governor, despite his allegations that she had lied on a mortgage application. Writing for a bare 5-4 majority, Mr Roberts said the Fed occupies a “unique” constitutional position rooted in a long tradition of insulating monetary policy from political interference. The result, as Justice Amy Coney Barrett noted in dissent, is a curious asymmetry. The president may now dismiss leaders overseeing labour relations, securities markets and nuclear safety—but not central bankers.
The apparent contradiction is telling. In Slaughter, Mr Roberts insists that those who exercise executive power must answer to the president. Yet in Cook he accepts that at least one powerful regulator may remain beyond the president’s reach. Whether that exception remains confined to the Federal Reserve or foreshadows further constitutional battles is unclear. What is clear is that Slaughter dramatically enlarges the powers of the presidency—not just for Donald Trump, but for every president who follows him.
