The Supreme Court is poised to hear Trump v. Slaughter, a case that could fundamentally reshape the balance of power between the presidency and Congress.
At issue is whether President Donald Trump can fire the heads of independent federal agencies at will — a power the Constitution does not explicitly grant and which the Supreme Court unanimously rejected nearly a century ago, wrote New York Times columnist Kate Shaw, a law professor at the University of Pennsylvania.
“Today’s Republican-appointed justices appear to be firmly under the sway of an atextual and ahistoric theory — the unitary executive theory — that demands complete presidential control over essentially every government agency and insists that the power to fire agency heads at will is an indispensable part of such control,” Shaw wrote.
This represents a dramatic departure from the 1935 Humphrey’s Executor decision, where the Supreme Court ruled unanimously that agency commissioners with bipartisan structures could be removed only for “inefficiency, neglect of duty or malfeasance in office.”
The stakes are substantial, Shaw wrote. The Federal Trade Commission, headed by five commissioners with staggered terms and no more than three from one party, currently protects consumers and enforces competition law. Granting Trump unilateral firing power would eliminate this safeguard and allow the president to transform independent agencies into extensions of the executive branch.
The consequences are already visible, the columnist wrote. Trump fired Democratic FTC Commissioner Rebecca Slaughter and others, halting enforcement actions including a case challenging artificially inflated insulin prices. Similar actions at the Consumer Product Safety Commission derailed carbon monoxide safety rules for furnaces and generators.
While Trump claims such Democratic appointees threaten presidential power, that argument lacks merit, Shaw wrote. Presidents retain numerous tools to influence agency direction without eliminating independent oversight. The real issue is ensuring that opposing viewpoints are considered in regulatory processes and preventing agencies from becoming presidential instruments.
As FTC Commissioner Slaughter noted, at Trump’s inauguration, the president was surrounded by executives from companies the FTC was actively litigating against.
“This, in a nutshell, is the reason to have agency independence,” Shaw wrote. “It’s also the reason agency independence is so threatening to the sort of regime Mr. Trump appears to be trying to create, in which all of government is a mere extension of the president.”
If lawmakers wish to eliminate this independence, they can change the law, she added. But the Constitution grants Congress, not the courts, that authority.
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