Unaccountable Commissions or All-Powerful Kings? 

In Trump v. Slaughter, the Supreme Court ruled that the president has the authority under Article II of the Constitution to remove members of the Federal Trade Commission. Compared to the Court’s recent decisions about birthright citizenship, mail-in ballots, and transgender athletes, Slaughter may seem dry and arcane. But in overturning ninety years of precedent and extending the president’s removal power to so-called independent regulatory commissioners, the 6–3 decision will significantly change the way the federal government operates. 

For the majority, the removal power is essential for maintaining the Founders’ vision of an energetic but accountable president. In Slaughter, Chief Justice John Roberts makes the eminently commonsensical argument that agencies performing executive tasks should be controlled by the chief executive: “Subordinates who exercise the President’s power are subject to removal by him.” Practically speaking, without subordinate officers, the president could not enforce the laws. But without the removal power, the president could not fulfill his obligation, under Article II, to “take care” that the laws be faithfully executed. Thus, the president must “be able to remove those who fail to live up to their duties, lest he fail to live up to his,” Roberts concludes.  

In defending the president’s authority over independent regulatory commissions, Slaughter restores the electric current of democratic responsibility, making commissioners “accountable to the President, and the President to the people.” According to the logic of the Constitution, “the buck stops” with the president because the president is elected by “We the People.” 

In her dissenting opinion, Justice Sotomayor argues that the decision undermines the rule of impartial experts and unleashes an imperial presidency. For one, Congress intentionally created the Federal Trade Commission to be insulated from direct political control, equipping a bipartisan, multi-member body, protected from arbitrary removal, in order to “address complex problems.” Citizens can and should debate the wisdom of the Federal Trade Commission Act of 1914, Justice Sotomayor admits; but since decisions like this “involve sensitive tradeoffs and difficult judgment calls,” she asks, shouldn’t it be the responsibility of Congress, not the Court, to make them? 

Similarly, Justice Sotomayor warns that “the majority’s theory of unitary, total executive control” arms the president with “unbridled authority” beyond even the powers of the English Crown and, as a result, threatens to upend vast swaths of the federal regulatory regime with every presidential election. As Hamilton himself wrote in Federalist No. 77, she notes, limitations on removal would prevent the “violent or … general … revolution in the officers of the government” at every election. The Court, she worries, has put “in the hands of a bold and designing man, of high ambition, … an instrument of the worst oppression.”  

At bottom, the majority fears an unaccountable fourth branch of government, while the dissent fears the chaos of an imperial presidency. Both concerns are legitimate. Independent agencies have enormous behind-the-scenes power over the day-to-day lives of American citizens; and recent presidents, whether quietly or brashly, have displayed near contempt for the rule of law in their attempts to enact their policies. Is there a path back to constitutional self-government? Is there a way through the waters between Scylla and Charybdis? Do we have to choose between a headless bureaucracy and a king? 

How Did We Get Here? 

The story of the president’s authority over the administrative state starts with the silence of the Constitution. As every informed citizen knows, the president nominates and, “with the Advice and Consent of the Senate,” confirms federal judges and ambassadors, as well as directors of executive agencies (such as the Department of Defense or the Environmental Protection Agency) and members of independent regulatory commissions (such as the Federal Trade Commission). But does the president need the Senate’s approval to dismiss (or “remove”) inferior officers from their positions? The Constitution does not say, at least not explicitly. 

In the First Congress, representatives debated the scope of the president’s removal power in what became known as the Decision of 1789. Some argued that executive officers could be removed only by impeachment. Others reasoned that if appointment required the Senate’s approval, then so too must removal: the power was “too great to be safely trusted in the hands of a single man,” warned Rep. James Jackson of Georgia. A third group contended that Congress could stipulate the mode of removal, since, after all, these executive agencies would be created by Congress. Finally, Rep. James Madison argued from the principle of democratic accountability: only when the president has the authority to unilaterally remove inferior officers can they be “responsible to the great executive power” and “the president responsible to the public.” 

In the end, Congress cleverly sidestepped the problem, saying only that when the secretary was “removed by the president,” certain duties would devolve upon the chief clerk of the department. For Madison, the clause implied that Congress was merely recognizing a removal power that is already present in the Constitution.  

Fast-forward to the early twentieth century, when the Supreme Court issued a pair of decisions that asserted, and then restricted, the president’s authority to remove subordinate officers. In 1926, in the 6-3 decision of Myers v. United States, Chief Justice William Howard Taft echoed Madison’s argument. (He considered Myers to be one the most important opinions of his tenure on the Court.) Since “each head of a department is and must be the President’s alter ego” in taking care that the law is faithfully executed, the president must have the “exclusive” power to remove them “the moment that he loses confidence” in their “intelligence, ability, judgment or loyalty,” Taft reasoned. Therefore, President Woodrow Wilson did have the authority to remove Portland’s postmaster.  

But in 1935, all nine justices, including those who joined the majority opinion in Myers just nine years before, ruled in Humphrey’s Executor that the president does not have the authority to remove officers who serve in a “quasi legislative” and “quasi judicial role.” The dispute arose when President Franklin Delano Roosevelt removed William E. Humphrey, a Republican troublemaker on the Federal Trade Commission, from his office, in clear violation of the Federal Trade Commission Act. (Insulating the FTC from presidential control, the statute allowed removal only in cases of “inefficiency, neglect of duty, or malfeasance in office.”) 

But the Supreme Court ruled in Humphrey’s favor, holding that the Federal Trade Commission was a new, hybrid creature, quite unlike a traditional “executive agency” like the one at issue in Myers. The FTC, it ruled, blended legislative and judicial powers, preparing reports for Congress as well as investigating companies and making recommendations to courts. 

Humphrey’s Executor has been the controlling opinion on the president’s removal power for ninety years: according to the Court, the president did have the authority to remove his subordinates in the executive branch but not members of independent regulatory commissions.  

The decision allowed the seed of an unaccountable administrative state to take root—and then spread like a weed. Progressives argued that the increasing complexity of modern political, social, and economic life required the rule of impartial experts insulated from the “rigidly unphilosophical” public. “Simple tripartite form of government” was deemed “inadequa[te] … to deal with modern problems.” The Constitution’s system of separated powers needed to be altered. Modern problems required modern solutions. As Franklin Delano Roosevelt had hoped, the day of enlightened administration had arrived. It just wasn’t accountable to him. 

Neil Gorsuch’s Constitution 

Following the logic of the Constitution, Trump v. Slaughter has redrawn the organization chart of the federal government, restoring democratic accountability over independent regulatory commissions. The president now controls the personnel of executive agencies and regulatory commissions alike. But it will be a hollow victory for constitutional self-government, or worse, if it results in the executive, rather than commissions, unilaterally dictating policy.  

Recently, under President Biden, the FTC tried to “ban nearly all employee noncompete agreements nationwide.” Under President Trump, the Chairman of the Federal Communications Commission seemed to threaten the Walt Disney Company with legal action unless it disciplined late-night comedian Jimmy Kimmel for comments he made about Charlie Kirk: “We can do this the easy way or the hard way.” 

For one side of the debate, these examples show that independent regulatory commissioners were not actually “independent.” With the president’s removal power restored, the American people can indirectly hold commissioners to account, they argue. But for the other side, these examples show the dangers of further politicizing the enforcement of the law. If the president now has the power to remove commissioners, what is to stop future presidents from weaponizing federal commissions against their political opponents? 

Enter Justice Neil Gorsuch. In his concurring opinion, Justice Gorsuch writes that “while electoral accountability is a good thing, it cannot be the only thing.” The decision, he warns, could result in merely trading a “headless fourth branch of government” for an imperial presidency, Scylla for Charybdis. Executive agencies and independent regulatory commissions still create, execute, and interpret “rules” that affect nearly every part of our lives, including “the airwaves,” our “financial markets,” and the “energy market.” In other words, they still exercise legislative, executive, and judicial authority. As Gorsuch writes: 

Open-ended delegations of legislative power have not gone away; now they will just be exercised by agency officials who answer to the President. The power to write new regulatory crimes still exists, but now the pen ultimately rests in the President’s hand. The ability to judge disputes in-house remains, but now the house is white. 

Thankfully, the Roberts Court has been moderately successful in reining in the administrative state. At least in theory, Congress may not delegate its essential legislative functions to administrative agencies. And under the major-questions doctrine, the Court presumes that Congress will speak clearly when authorizing an executive agency to take action of major “economic and political significance,” striking down President Obama’s sweeping attempt to shift the electric grid from coal to renewables, President Biden’s vaccine mandate and cancellation of student loans, and President Trump’s tariffs. 

The Constitution separates the legislative, executive, and judicial powers into intentionally designed institutions in order to promote good government: bicameralism slows down the legislative process, promoting deliberation. A unitary executive is both energetic and accountable, since the buck stops with him. An independent judiciary is well suited for impartially interpreting and applying the law to specific cases. When each part is working as it was designed, laws are stable (since they require compromise and broad consensus), enforced with vigor, and interpreted fairly.  

On the other hand, combining these powers—whether in an independent regulatory commission wielding “quasi” legislative and “quasi” judicial powers in order to enforce the law, or in the hands of an imperial president—is, in James Madison’s view, “the very definition of tyranny.”  

There’s a way between the rule of an unaccountable bureaucracy and the reign of a king: constitutional government. In fact, now that the Court has brought the FTC under presidential control, it may be the only alternative to the rule of a king: “Let Presidents exercise all those powers or begin subjecting them to the Constitution’s constraints,” writes Gorsuch.  

Especially after Slaughter, the Court must remind these agencies and commissions of their proper role by asserting the limits imposed on them by Congress and by the Constitution. At a minimum, the Court must continue to strengthen its burgeoning major-questions doctrine and strike down rules promulgated by administrative agencies and commissions that overstep their congressional authorization. It will be a narrow road, a steep, uphill climb. To rephrase Winston Churchill’s famous quip about democracy, the path might be the worst option … except for all the others. “From here,” writes Justice Gorsuch, “the only sure path is to finish the journey we start today and restore legislative and judicial powers to where they belong: in Congress and the courts.”  

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