| In June, the Republican appointees on the Supreme Court gave Donald Trump one of the biggest wins of his second term when they overturned a 91-year-old decision that allowed Congress to limit presidents’ ability to fire the leaders of independent agencies created by Congress. |
| In an opinion written by Chief Justice John Roberts, the six conservative justices ruled in Trump v. Slaughter that presidents can remove independent agency heads at will. Roberts cobbled together a separate majority in Trump v. Cook — including the three Democratic appointees — to carve out an exception to this new rule for members of the Federal Reserve’s Board of Governors. |
| These decisions were widely expected by legal observers, but the implications are extraordinary. Since Trump reentered office, he has fired Democratic members of many independent commissions — despite partisan balancing requirements imposed by Congress — and he has effectively neutered the work of entire bodies by depriving them of quorums. Last month, more than 50 professors wrote to congressional leaders to underscore the gravity of the situation and urge them to enact statutory reforms in response to the Court’s decisions. |
| This week, I convened a roundtable with three of the signatories to that letter — Nicholas Bednar, a law professor at the University of Minnesota who has focused on the practical implications of the rulings on government functions; Jane Manners, a law professor at Fordham University who has done extensive historical research on removal powers; and Mitchel Sollenberger, a political science professor at the University of Michigan-Dearborn who has studied the origins and history of the unitary executive theory, which undergirds the Court’s decision in Slaughter. |
| We talked about the impact of the decisions, the soundness of the conservative justices’ reasoning, and potential reforms — including some early, positive signs that some members of Congress may be interested in passing legislation to address the situation. |
|
| This conversation has been edited for length and clarity. |
|
| Professor Bednar, can you describe the state of the law after Slaughter — we can get to Cook in a minute — and the practical implications for the bodies that we used to describe as independent commissions? |
| Nicholas Bednar: Step back to three months ago: What was the status quo pre-Slaughter? It used to be the case that Congress could pretty much freely restrict the removal of principal officers — the people directly below the president, for the most part. These individuals are nominated by the president and confirmed by the Senate. |
| There’s a decision from the 1930s called Humphrey’s Executor that basically solidifies that law and says that, for purposes of these multi-member commissions, Congress can create removal protections when these bodies are exercising quasi-judicial and quasi-legislative authority. But broadly construed, prior to about a decade ago, the Supreme Court didn’t intervene that often in agency design. |
| So fast forward to Slaughter: Slaughter overrules that case from the 1930s, Humphrey’s Executor, and the default rule now is that Congress cannot insulate principal officers from removal. |
| Why does this matter for the functioning of these commissions? These are a lot of the familiar bodies, such as the Federal Reserve or the Securities and Exchange Commission or the Federal Communications Commission. These bodies are composed of multiple members, usually somewhere between three and seven. And Congress did several different things when it was designing these commissions to ensure a degree of independence from the president. |
| The thing that Slaughter is concerned about is removal protections. These individuals were not supposed to be removed except for cause. That is what Slaughter is striking down. |
| The other two provisions worth keeping in mind, though — and the indirect implications Slaughter has for them — are partisan balancing and quorum requirements. |
| | | “The president can choose to disable these agencies when the president just doesn’t like what the agency does in the first place” |
|
| Partisan balancing: A lot of these commissions require the president to appoint a certain number of members from different parties, or they cap the number of members the president can appoint. If the president can just come in and remove all the Democratic members — which is what happened at a lot of these commissions — then that partisan balancing requirement doesn’t function as intended. |
| The second important part is that these are multi-member commissions. They are designed to arrive at decisions through a collective decision-making process. And that requires a quorum requirement. A lot of these commissions have statutory quorum requirements that require a simple majority of the members to be present. |
| Another effect of Slaughter is that the president can effectively break these quorums by removing a certain number of members so that the agency can no longer take action. Which means it’s not simply that Slaughter allows the president to replace principal officers with people the president might prefer — it’s also that the president can choose to disable these agencies when the president just doesn’t like what the agency does in the first place. |
| Professor Manners, when I read Justice Roberts’ opinion in Slaughter, he makes it seem quite simple: When the Constitution came into existence, this was the default rule, it’s always been the rule, and maybe we screwed up for about 150 years, but now we’re back to the default rule. |
| You’ve done extensive historical research on this topic. What did you find in the course of your work? |
| Jane Manners: It’s really hard if you are both a committed originalist and a committed unitary executive theorist — if you believe that all of the power of the executive is vested in the president, and that he has plenary control over the executive branch — because it just so happens that that is the opposite of what the framers thought. |
| Justice Roberts, in his Slaughter opinion, has all of these elisions and sleights of hand to make it seem that it’s really straightforward — that, of course, everyone understood the president had to have the power to fire everybody who worked for him, or you were violating the power that Article II gave him. |
| What everyone in fact understood at the framing is that the tenure of an officer was fundamentally a legislative decision. The legislature got to build the office, it got to figure out the laws it wanted to pass, and it got to figure out the kind of power it wanted to give to the officer who was going to execute that law. Then it was up to the president to oversee these officers in the executive branch — but it did not in any way mean that the president had a constitutional power to fire these officers at will. |
| | | “It just so happens that that is the opposite of what the framers thought” |
|
| There are a few points in Justice Roberts’ opinion where he’s really up against a wall. He talks about [James] Iredell, who was one of the first Supreme Court justices, and says that Iredell understood the president had to have this kind of, essentially, unitary power over the officers who worked for him. That is, in fact, not at all what Iredell was saying. He’s making this statement at a constitutional ratifying convention. |
| What he is saying is: Hey, guys, don’t worry — we didn’t have a unitary executive under the Articles of Confederation, but the fact that we’re going to have one person as president of the United States should not give your anti-monarchical hearts reason to fear, because the president will be held to account. |
| He goes on to say how the president is going to be held to account: He will be criminally liable. He will be punishable by the laws of his country, and in capital cases may be deprived of his life if he commits any crime. In other words, this half-quote that Justice Roberts includes in his opinion is in fact saying the opposite of what he intends it to say. |
| There’s also a place where he says early presidents all understood that they had the power to fire anyone under their command, regardless of what the statute said. And he has this quote: He says George Washington understood it was his “indispensable duty” to remove officers — “indispensable duty” is in quotes — and then he says, “who failed to live up to their expectations.” |
| Those are Roberts’ words, not Washington’s words. And I thought: That does not sound like anything George Washington would have said. |
| So I looked up the quote. He lops off the second half of the sentence, because what Washington is in fact saying, in a letter, is that it is the indispensable duty of presidents to remove an officer who is found incompetent, remiss in his duty, or pursuing wrong courses. Essentially, an officer who is found inefficient, neglecting his duty, [or engaged in] malfeasance in office. |
| Those are precisely the terms under which Congress authorized the president to fire [members of the Federal Trade Commission]. President Trump could have removed Rebecca Slaughter for any of those discrete causes if he had gone through the process. But he didn’t. He said: I am not asserting a cause, because it’s my Article II authority. |
| There are all these ways in which Justice Roberts is eliding or denying or misrepresenting the history. |
| What do you infer from that? What I infer is that this is a historical analysis that was really never on the level. |
| Manners: I think he wants to say he is not making a policy decision here. His whole career as chief justice has been built on the idea that he calls balls and strikes. He is against living constitutionalism. It’s all about fidelity to the original meaning. |
| | | “He’s doing it even though the history does not support him, so he’s pretending that the history does support him.” |
|
| So he’s in a hard place here. He has a deep and long-held commitment to the unitary executive theory, from when he was an attorney in the Ronald Reagan administration, and he’s got the opportunity to realize that vision, and he’s going ahead and doing it. |
| He’s doing it even though the history does not support him, so he’s pretending that the history does support him. In the process, he’s really upending, as Nick was saying, well over 100 years of precedent, and upending the administrative state that Congress has built. |
| Mitchel Sollenberger: I like how she mentioned Roberts calling balls and strikes. He said it with a straight face: He likened the judge’s role to that of an umpire. |
| What you really have here is Roberts putting his thumb on the scale for one particular theory and view of the presidency. I’m not saying that it isn’t a view that has some rational basis to it, and you can find selective quotes. But what Roberts has done is give lawyers a bad name. |
| You always hear that lawyers make bad historians — which I absolutely find funny, because a lot of the best legal historians are in law schools right now. |
| I think we need to pound that in: What Roberts has really done is put the unitary executive glasses on — or try to put the unitary glasses on everyone — and say, this is how the world works. And it simply isn’t. |
| You’ve spent a lot of time studying the origins and development of the theory. I don’t think most people know that Roberts was instrumental in the development of this theory, and I think it’s the craziest thing that he’s now the chief justice implementing this thing that they essentially made up about 40 years ago. |
| Sollenberger: It’s not only Roberts but [Samuel] Alito — he was a young lawyer, just like Roberts, in the Reagan administration’s Department of Justice. The unitary executive theory’s origins really began in the early 1980s in the Reagan administration, particularly the Department of Justice. |
| The rise of the imperial presidency and Richard Nixon’s abuses in the 1970s largely discredited a strong, aggressive use of presidential power. That’s why you saw Congress push back during the 1970s with various reforms — [on] impoundments, war powers, oversight, emergency powers, you name it. All of those were post-Watergate reforms that Congress passed. |
| The Reagan team comes into office in the early 1980s in this context, and they had witnessed what they saw — or perceived — as two embattled presidential administrations in Gerald Ford and Jimmy Carter. What they believed is that Congress had overstepped its bounds, and that there needed to be a pushback, a self-correction. |
| From there, they needed to actually develop this unitary executive theory. They needed to give it a name; they needed to provide an underlying rationale. None of that was really there. |
| So you have Department of Justice lawyers starting to push this — particularly Edwin Meese. Most famously, Meese commissioned a Department of Justice study in 1986 — a separation-of-powers memo. |
| | | “If you don’t give unitary executive theorists anything else, you should give them persistence” |
|
| You even had Dick Cheney, who was a member of Congress at the time — he wrote the minority views for the Iran-Contra report. And those minority views are paint-by-numbers what you would see in any unitary executive scholarship or court case, you name it. |
| They thought they had enough in terms of intellectual oomph to push back on what they saw as clear invasions of the president’s power when it comes to overseeing the administrative state. Morrison v. Olson, they thought, was going to be their crown jewel success. This is the 1988 case challenging the independent counsel law. The Supreme Court was made up of a conservative majority — they said, hey, we have the numbers. And they lost. |
| But if you don’t give unitary executive theorists anything else, you should give them persistence. Out of the ashes of Morrison, they built their numbers. They built it through the Federalist Society and similar organizations. |
| They not only got young law students — these young law students became lawyers in future Departments of Justice, they became law professors, and then they became federal judges. |
| Out of this, you get the switch from a conservative Supreme Court in the 1980s that still believed in a more traditional view of separation of powers — one filled with the William Rehnquists of the world, who would author Morrison — to one that’s more unitary-executive-friendly by the late 2000s. |
| That’s when you get Free Enterprise Fund in 2010, and Seila Law in 2020, and Collins [in 2021]. Those cases set up Slaughter. |
| It’s a legal theory that traces itself back about 40 years or so — now about 45 years. I can’t believe it’s 2026, and here we are. |
| Professor Bednar, let’s turn to Cook. Roberts makes two key claims in the opinion, and I’ll ask you about the first one and Professor Manners about the second one. |
| The first is that there’s this policy rationale: that because the Fed is so important, it somehow stands apart from these other commissions. What do you make of the distinction on the merits? And do you think that this is an exception that may be available to other agencies, or is this just for the Fed? |
| Bednar: It’s hard to answer. Cook is a poorly written opinion. They really do not want to answer why the Fed is different. Part of that is: If we open up the historical exception, what do you get? |
| Does the exception make sense? If we think about this as a purely policy matter, you can understand why the Fed is so economically significant that you would not want political influence to affect monetary policy. |
| That said, why can’t you make the same argument about a lot of these independent commissions? You have the Securities and Exchange Commission and the Federal Trade Commission — both of them regulate huge swaths of the economy. |
| You also have commissions like the Nuclear Regulatory Commission or the Defense Nuclear Facilities Safety Board. Are we saying that with nuclear power, political influence is okay — that we’re fine with that? |
| You have a bunch of adjudicatory commissions — the National Labor Relations Board, the Merit Systems Protection Board — all of these agencies that are effectively operating as quasi-courts. We have a strong history of judicial and adjudicatory independence in this country. Are we saying that’s no longer a value we have? |
| So does the Federal Reserve exception make sense? Yes — but just as much as any other exemption would. I don’t disagree with the exemption, insofar as I think Slaughter was wrongly decided in the first place, and therefore I think Congress should have the authority under the Necessary and Proper Clause to design agencies in a way that ensures effective governance, as opposed to political influence that undermines these agencies. |
| Do you think that Cook is going to be the only exception? Or is this something that you think the conservatives will be amenable to in the future with other commissions? |
| Bednar: I don’t know. Slaughter came down slightly differently than I thought. I think we all agreed Humphrey’s was dead. |
| Is there a potential for other exceptions? Slaughter kind of hand-waves: Well, maybe Article I courts, and maybe legislative agencies. But I don’t have a great sense of entirely what we’re going to put in those buckets right now. |
| The other thing with Cook is there’s a footnote in Cook that says something like: Do not fear, dear reader — if Congress were today to shove the entire administrative state into the Fed, surely we wouldn’t allow that to happen. So it does seem like the Fed stands alone, but they really haven’t given clear guidance about what else might be out there. |
| Professor Manners, on the historical claim: Again, this is presented in a very simplified way in the decision, as if — you know, there was the first national bank and all these things that nobody knows anything about, including myself — oh, this has always existed, there’s always been this bank, we have this long tradition of independent central banking. |
| Manners: Roberts is saying, not incorrectly, that members of the founding generation understood that the money supply should not be a partisan matter. True. |
| To Nick’s point, they understood a lot of things should not be purely partisan. I mean, they had issues with parties — deep issues with parties as an entity, let alone the idea that partisan politics should control how officers executed law. |
| The trouble that Roberts gets into, although he tries hard to avoid it, is that he says the Fed is like the Bank of the United States. The Bank of the United States was a private corporation. So at that very fundamental level, it is not like the Federal Reserve Board of Governors, which is a regulatory body that regulates through law. |
| He has this language in the opinion where he talks about the Bank of the United States being a regulator. But that use of the word “regulation” — both in its historical sense and in the kind of hand-waving that Roberts is engaging in — is not legal regulation. |
| The idea is that the Bank of the United States, kind of by accident, ends up regulating the money supply, because it has all of these relationships with other banks that allow it to expand or contract the money supply, and in that sense “regulate.” But it wasn’t passing laws. It didn’t have the force of law behind its regulation. |
| So the idea that the Federal Reserve Board of Governors is a kind of modern-day analog of the Bank of the United States — my friend and co-author Lev Menand called it comparing apples and giraffes. It’s just completely different. |
| But the Board of Governors — the entity whose members are now protected from at-will removal, thanks to Trump v. Cook — is just a regulatory body, pretty much indistinguishable from any other regulatory body, aside from the fact that the policies it deals in are policies that seem very precious to the conservative majority on the court. |
| I’m curious what your sense is of Congress’s reaction to the impact of the rulings. Have you heard anything in response to the letter? |
| Bednar: Yes — one, I do know that members of Congress have seen the letter, and that it ended up on certain very high-up leaders’ desks. Two, there is legislation being floated that addresses a lot of what’s in the letter. |
| Now, I’m being somewhat cagey because I don’t know how much I’m allowed to reveal. The obvious remark here is that there’s a Republican majority in the Senate and a Republican majority in the House, and if Democrats take the House and the Senate and they pass it, it probably still gets vetoed. |
| But it would at least be a signal of Congress’s commitment: We’re not throwing the baby out with the bathwater. We are still serious about maintaining the independence of these agencies, to the extent the court will allow us to do so. |
| I’m curious what your preferred ideas are here. |
| Bednar: One big issue I have is that a lot of these agencies engage in adjudication. Individuals who appear before these agencies to vindicate either their constitutional or statutory rights have to appear before the agency before they can get to federal court. |
| If you’re a president who, say, doesn’t like the civil service very much, a way to ensure that no one ever has a hearing as to whether they were lawfully removed from their position is to just break the quorum at the Merit Systems Protection Board and prevent those individuals from having hearings. So one big reform would be allowing, when there is no quorum at these agencies, for those people to bypass the agency and go straight to federal court. That’s probably going to be necessary if we want to preserve any amount of adjudication within the executive branch. |
| Professor Manners? |
| Manners: In terms of long-term legal-theoretical possibilities, the one possibility that jumps out to me is that maybe — although this court seems to have no appetite for it — maybe the Cook exception becomes so big that it swallows the rule. |
| You can certainly make a very plausible case that the independence that’s crucial to the Fed’s functioning is also crucial to all of these other agencies’ functioning, and you’ve certainly got the history and tradition — the court’s favorite approach — to back up that independence. |
| It would take a different makeup on the court. But if we’re admiring the fortitude and perseverance of the originalist-slash-unitary-executive-theory camp, then maybe we should also have a long-term strategy for resurrecting or saving or whatever we have to do with the administrative state. |
| | | “Maybe the Cook exception becomes so big that it swallows the rule” |
|
| Professor Sollenberger, how about you? |
| Sollenberger: If you’re thinking about the philosophical underpinnings of independent regulatory agencies — where they come from — it’s the Progressive Era, and this idea of apolitical experts. They have longer terms, they’re staggered, etc. |
| I don’t necessarily think that’s going to get a groundswell of congressional willingness to reform. With Congress, there needs to be a public policy problem. The quorum issue, I think that’s a big one, with the members Trump has removed. But I think we’re going to have to see where this goes. |
| One thing we haven’t talked about [is Trump’s] executive order bringing the independent regulatory commissions under OMB review. So now the Office of Information and Regulatory Affairs reviews all regulatory actions coming from these agencies — even before Slaughter was decided, these agencies were sending their regulatory actions to OMB for review. |
| And that executive order goes even further. It really does bring these agencies under the thumb of the White House. |
| It says the chairs of these commissions need to consult with the relevant White House policy offices; any kind of strategic planning needs to get signed off on by the White House; the White House is going to create performance standards and management objectives — there’s a long laundry list. These agencies need to adopt the legal views of the Department of Justice and the White House. They can’t have independent views of the law. |
| What Slaughter did is basically codify the executive order. What I would like to see is: What are the implications not only of removal and how that’s going to affect agency behavior, but of this particular executive order? How far are the Trump administration and future administrations willing to go in taking a top-down command approach with these agencies? Is Congress going to push back? Congress has many tools to respond. |
| … |
| In my mind, the next five, ten years is going to be less about some big change that Congress is going to make, and it’s going to be incremental responses to presidential power. |
| If you look at the post-Watergate period, most of the time my students are like, oh yeah, Congress passed the War Powers Resolution, the Impoundment Control Act, the National Emergencies Act, the Ethics in Government Act — they passed that within a year or two. No — it was basically a decade-long period of Congress passing roughly 20, 25 pieces of major legislation. |
| The change doesn’t happen overnight, and I think that’s something that’s important for us to remember. |
| That sounds like some cause for optimism — that this isn’t the end of the administrative state, but that we may be at the start of the development of a new equilibrium. |
| Manners: I think Professor Sollenberger’s point is very well taken. In some ways, I was presenting a Platonic ideal of how these independent agencies were completely insulated from partisan control, but of course there are a million ways in which presidents influence the independent agencies during their time in office. |
| The idea that this is going to be the final blow that brings independent agencies under the president’s thumb is probably far-fetched. That said, when the president can fire at will, and then there’s no quorum and the agencies can’t function, that is a much more immediate threat, as Professor Bednar has so eloquently explained. |
| Bednar: I don’t think this is the end of the administrative state, insofar as the modern government does so much. |
| Congress is not going back to a period where it is granting individualized petitions on behalf of individuals who need patents. |
| | | “I can’t get any students to apply to the Department of Justice. And frankly, I don’t know that I want them to apply to the Department of Justice right now.” |
|
| I do have one concern, which is that part of the ability of the federal government to govern depends on people being willing to work for it. One thing that has happened — you see this a lot if you teach law students — is that people don’t want to go work for the federal government. |
| For a long time, the federal government represented this place where, if you want to do meaningful work, and you have a certain amount of expertise, and you’re willing to sacrifice a bit of your salary to do so — that drew a lot of people in. |
| A good example of this is attorneys: The Department of Justice used to be one of the most prestigious jobs you could get right out of law school. I can’t get any students to apply to the Department of Justice. And frankly, I don’t know that I want them to apply to the Department of Justice right now. There’s going to be a whole generation of people who are very hesitant to go into federal service, be they attorneys or economists or whoever. |
| A lot of the expertise that you need to run the administrative state — I don’t know how much longer it’s going to be there, and it’s going to probably take a lot longer to reestablish the reputation of the federal government. |
