Trump v. Slaughter Wasn’t About Trump

The more foundational questions at the center of the independent agency case.

I.

The landmark arguments heard at the Supreme Court on Monday — about giving presidents the right to fire independent agency officials — have been widely interpreted as revolving around Donald Trump.

“Supreme Court Poised to Expand Trump’s Power Over Independent Agencies,” the Washington Post reported. “SCOTUS’s GOP Justices Are About to Hand Trump Way More Power,” Mother Jones, a more liberal outlet, put it more liberally.

And that’s fair enough, up to a point. I attended Monday’s arguments, and certainly agree with the topline takeaway that Trump will win the case. I also understand the instinct to view the case through a Trumpian lens: Trump’s quest to expand executive power, and his relationship with the Supreme Court, have been two of the dominant themes of his second administration, which makes it tempting to frame the case in those terms.

It is true that no president in 90 years has been assertive enough as to fire an independent agency official in quite the way Trump is trying to do now; perhaps it is also true that no other Supreme Court would have allowed it.

But I happen to think this is one instance where the modern American temptation to make everything about Donald Trump actually sells the case short. The dispute, Trump v. Slaughter, may bear his name, but it forces us to ask questions — about how we imagine our president and our government — that predate him, and will outlast him, and are much broader and more interesting than anything having to do with Trump himself.

We’ll start with the most basic of those questions, and plumb deeper as we go. The first question is the one most naturally ignited by the case: Can the president fire independent agency officials?

The dominant mode of interpretation at today’s Supreme Court is textualism (“We’re all textualists now,” the liberal Justice Elena Kagan once famously said), so your first instinct might be to consult the text of the Constitution.

Immediately, we run into a problem. Independent agencies are nowhere in the Constitution. And neither is there anything about whether or not a president can fire people. Let’s quickly take a trip back to the Creation.

II.

In the beginning, the Constitution created legislative power, and gave it to a Congress; executive power, and gave it to a president; and judicial power, and gave it to a Supreme Court.

And then, the Framers rested, even though they really hadn’t explained that much. The U.S. Constitution is a mere four pages: not even 8,000 words, one of the shortest constitutions in the world. Some of the most important features of our government as we understand it today go entirely unmentioned. The American government, at this point, basically consisted of a two-person executive branch (a president and vice president), the members of the House and Senate, a Supreme Court of indeterminate size, and nothing else.

With the topmost layer of officials articulated for each branch, the Constitution leaves it to Congress to fill in the rest, for themselves and the other branches. Lawmakers quickly created something of a hierarchy under each: committees for itself, Cabinet agencies for the president, and a system of judges to lighten the Supreme Court’s load.

From there, it starts to get a bit more gnarly.

Monday’s arguments were about one of the more complex of Congress’ creations: independent agencies. This alphabet soup of agencies can be difficult to keep track of, but they wield immense power over American society. The Federal Trade Commission (FTC) and Federal Communications Commission (FCC) can block corporate mergers. The National Labor Relations Board (NLRB) supervises union elections. The Consumer Product Safety Commission (CPSC) can recall products deemed unsafe. The Securities and Exchange Commission (SEC) sets the rules for stock markets. There are others, too.

These agencies have historically been considered to exist somewhere within the executive branch, but outside of the president’s direct control. To ensure this independence, Congress created checks, including requiring that many commissions include members of both parties and often prohibiting the president from firing those members over policy differences.

This brings us to our next-level question: When can the president fire people? Donald Trump is not the first commander-in-chief to ask. In fact, it has been one of the biggest unanswered questions that has swirled around Washington since the start of the republic. The first Congress spent more than a month debating it in 1789. It was also at the center of the first presidential impeachment, against Andrew Johnson, in 1868. In the independent agency context, before there was Trump, another president with an aggressive view of executive power (Franklin D. Roosevelt) attempted to fire a member of the FTC, William Humphrey, who didn’t align with his policy views.

Ultimately, in 1935, the Supreme Court ruled against Roosevelt, reasoning that Congress could block presidents from firing members of independent agencies because these agencies craft rules and adjudicate disputes, which means they aren’t purely executive in nature — they are also “quasi-legislative and quasi-judicial,” as the court put it. (By this point, poor Mr. Humphrey had passed away, which means it was left to his estate to carry on his lawsuit, seeking backpay. That’s why the case is known as Humphrey’s Executor.)

Upon taking office earlier this year, Trump became the next president to try to fire FTC commissioners for policy differences, removing Democrats Rebecca Slaughter and Alvaro Bedoya and putting the agency entirely in Republican control. The two Democrats sued, creating Trump v. Slaughter. The president, in response, asked the Supreme Court to overturn its 1935 precedent and place independent agencies entirely within his auspices.

Rebecca Slaughter (in the green jacket) walking into a car after the Monday arguments that bore her name. (Photo by Gabe Fleisher)

III.

Listening to the justices on Monday, it was clear that FDR’s theory, channeled through Trump, was poised to belatedly succeed. (You might even say that Trump is acting as Roosevelt’s executor.)

“I’ll put my cards on the table,” Justice Neil Gorsuch said as he questioned Slaughter’s lawyer. Perhaps the attorney’s struggles to answer his questions, he said openly, is “recognition that Humphrey’s Executor was poorly reasoned and that there is no such thing in our constitutional order as a fourth branch of government that’s quasi-judicial and quasi-legislative.”

Chief Justice John Roberts managed to put it even more directly, calling Humphrey’s Executor a “dried husk” of a precedent, because the modern FTC has grown into an agency much more executive in nature than its 1935 equivalent. And if the FTC is exercising executive authority, the justices will likely say, separation of powers demands that the chief executive be placed atop it.

This brings us to our third and deepest question: What does it mean for powers to be separated in the American system?

Once again, the Constitution is a surprisingly unhelpful guide. The term “separation of powers,” so associated with the Founders, appears nowhere in the text. Many critics brought this up during the ratification process; in response, when writing the first draft of the Bill of Rights in 1789, James Madison proposed that the Constitution be amended to include the following:

The powers delegated by this Constitution are appropriated to the departments to which they are respectively distributed: so that the Legislative Department shall never exercise the powers vested in the Executive or Judicial, nor the Executive exercise the powers vested in the Legislative or Judicial, nor the Judicial exercise the powers vested in the Legislative or Executive Departments.

Imagine how things might be different if this provision had been part of our Constitution for the last 200+ years! Alas, the House approved the proposed amendment, but the Senate didn’t. Scholars have debated how to approach the separation of powers ever since.

There are two main schools of thought: formalists and functionalists. Formalists take basically the view that Madison encouraged, that the government should be split into three distinct boxes: a legislative branch that legislates, an executive branch that executes, and a judicial branch that adjudicates, and never the twain shall meet.

Functionalists, meanwhile, look at these bright lines — and the story I told above, about three branches with three clear areas of responsibility — as more of a creation myth. They believe power is meant to be shared, not separated. As long as each branch retains their core functions, they’re OK with some mixing and blending between the three.

IV.

You may think we have wandered far afield from Trump v. Slaughter, but we haven’t. Why is Trump likely to win his case? The case will have the effect of expanding his power mightily in important sectors, but the cause doesn’t have much to do with him. It’s because the Supreme Court’s current majority is highly formalist (which, after all, is a very small-c conservative worldview, preferring strict rules and lines over loosey-goosey functionalism).

There is no more obvious affront to formalism than Humphrey’s Executor and its “quasi-legislative and quasi-judicial” agencies, which literally mixes and blends the branches of government. As a result, several of the court’s conservative justices have been driving towards overturning the 1935 precedent for years now, since long before Trump was on the scene.

As a young lawyer in the Reagan Justice Department, John Roberts penned a memo describing independent agencies as a “constitutional anomaly” and asking whether “the time may be ripe to reconsider the existence of such entities and take action to bring them back within the executive branch.”

A few decades later, Roberts was in a position to do so. In 2010, he wrote an opinion for the court (while Barack Obama was in office) ruling that one independent board was impermissibly insulated from presidential control. Then, in 2020 (when Trump was president the first time) and in 2021 (when Joe Biden was president), the court went further, placing independent agencies with single leaders (like the Consumer Financial Protection Bureau and Federal Housing Finance Agency) outside the reach of Humphrey’s.

This is a project the justices have carried on during presidencies of both parties. As a lower court judge, to give another example, Justice Brett Kavanaugh pushed for Humphrey’s Executor to be overturned in a 2011 opinion that would have expanded Obama’s power over the Nuclear Regulatory Commission (NRC).

These opinions have all advanced unitary executive theory, which argues that the president should wield final say over personnel within the executive branch. That may sound bold, but it’s really just a subset of the formalism we’ve already encountered. Are you working within the executive branch box? these theories ask. Then, yeah, you should probably be accountable to the executive branch’s leader.

The Supreme Court building on Monday. (Photo by Gabe Fleisher)

V.

As they questioned John Sauer, the Trump administration’s solicitor general, and Amit Agarwal, Slaughter’s lawyer, during Monday’s arguments, the two wings of the Supreme Court spent much of their time painting two competing doom worlds. I’ll call them Peak President and Peak Congress.

Let’s start with Peak President.

This is the world, according to the liberal justices, that Trump’s lawyer Sauer was pushing for. “Your fundamental proposition,” Justice Elena Kagan said to Sauer, is that the Constitution “gives the executive power — all of it — to the president.”

But if that’s the case, why would that stop at independent commissions, she asked. Would restrictions on presidents firing members of the Federal Reserve also be unconstitutional? How about bankruptcy or tax court judges, who aren’t technically part of the judicial branch? Or the two million members of the apolitical civil service? “If you accept that proposition…it does not seem as though there’s a stopping point,” Kagan said. Either everything is under the president, or it isn’t.

It’s easy, of course, to imagine the dangers here: not just currently-independent agencies flipping parties over every four years, but basically the entire federal workforce — plus the Fed, which was designed to keep monetary policy (and the ability to make or break recessions) out of partisan hands. In the view of the court’s liberals, this is where a formalist decision would lead us: if you wedge everyone back into their boxes, Congress (either because of its own weakness or because it has lost its checks on the executive) will be stripped of its power, creating a world dominated by the executive.

Then there’s Peak Congress.

This is the world, according to the conservative justices, that Slaughter’s lawyer Agarwal was pushing for. If it is accepted that Congress can rein in executive power by placing limits on independent commissions, could they do the same for every agency within the executive brach? “I could go down the list with you of the cabinet officers and ask you whether you think they could be headed by a multi-member commission whose members are not subject to at-will removal by the president,” Alito told Agarwal, his former clerk. “Shall we do that? How about Veterans Affairs? How about Interior? Labor? EPA? Commerce? Education? What am I missing?” (“Agriculture,” Justice Gorsuch helpfully chimed in.)

Could Congress do away with the Cabinet altogether and say that education policy will now be overseen by a multi-member, Education Commission staffed by non-partisan experts, instead of an Education Department answerable to the president? And same with a Health and Human Services Commission, and so on down the line?

“The SG was asked about the logic of his argument,” Justice Clarence Thomas said to Agarwal. “What’s the logic of yours? How far does it carry you?”

We’ll answer that question in tomorrow’s newsletter, where we’ll imagine how far Congress could theoretically go in bringing executive branch agencies to heel — what this Peak Congress world might look like — and discuss the broader implications of the Trump v. Slaughter ruling, including over the pending case on Trump’s tariffs.