The Supreme Court embraced the “unitary executive” legal theory on Monday, finding that President Trump could fire without cause a commissioner on the Federal Trade Commission. Times Opinion asked two legal scholars — Cass R. Sunstein and Philip Hamburger — to explain what this means for White House power and American government. Mr. Sunstein argues that the court’s decision is misguided, and Mr. Hamburger makes the case that the justices are right.
A theory that should have stayed in the 1980s
By Cass R. Sunstein
Well, that took a while. But the unitary executive is now the law of the land.
In Trump v. Slaughter, the Supreme Court ruled that the president has the constitutional power to discharge at will commissioners of the Federal Trade Commission — and evidently heads of numerous other agencies, such as the National Labor Relations Board and the Federal Communications Commission, that have long enjoyed a measure of independence from the commander in chief.
There is a vigorous debate about whether the theory behind the court’s decision is fairly traceable to the founding era. But no one can doubt that the court’s decision is the culmination of over 40 years of vigorous advocacy. The idea of the unitary executive caught fire in the early 1980s. That was when young lawyers at the Department of Justice reached a firm conclusion: The executive branch is indivisible, and the president is its boss.
I was there at the time. So were John Roberts and Samuel Alito. While there appears to be no public record of their views from that era, they were certainly present when the unitary executive led the hit parade.
Back in the 1980s, we were supremely confident that the president had the constitutional authority to remove all high-level employees who executed the laws, including the commissioners of the Federal Trade Commission. Forty years later, I now think we were wrong. We overlooked the immense importance of stability in American government, and we failed to anticipate the dangers of politicizing everything.
Our thinking back then, now accepted by the Supreme Court, was simple. Article II, Section 1 of the Constitution says, “The executive power shall be vested in a president of the United States of America.” Article II, Section 3 says that the president “shall take care that the laws be faithfully executed.”
We thought, and the Supreme Court now agrees, that those provisions are unambiguous. The executive power, every ounce of it, is given to a single person: the president.
Our views about the Constitution’s text were, we thought, fortified by the Constitution’s history, and the court now insists on this point, too. With the so-called Decision of 1789, Congress concluded, after long debate, that the heads of the first departments — Foreign Affairs, War and Treasury — could be fired by the president if and when he wanted. In other words: The Constitution creates a unitary executive.
We were certain that the Supreme Court had made an egregious error when it ruled in 1935 that Congress could make the Federal Trade Commission independent by barring the president from removing its heads except for inefficiency, neglect of duty or malfeasance.
One problem with our conclusions is that they flew in the face of long-settled law. Congress created the Interstate Commerce Commission in 1887, the Federal Trade Commission in 1914 and the F.C.C. in 1934. Invalidating laws calling for agency independence — as this court just did — is disruptive to institutional arrangements that have been a part of American government for generations.
It is also not as clear as we thought, and as the court now thinks, that the Constitution creates a unitary executive. The court’s analysis is impressive and painstaking, and it is not blatantly wrong. But the Constitution is silent on the president’s removal power. In the Federalist Papers, Alexander Hamilton appeared to reject the idea that the president gets to fire everyone who works for him, writing of the Senate, “The consent of that body would be necessary to displace as well as to appoint. A change of the chief magistrate” — that is, the president — “would not occasion so violent or so general a revolution in the officers of the government as might be expected.”
Careful investigations of the congressional deliberations during the long debate in 1789 over what form the first executive departments ought to take suggest that most members of Congress probably did not think that the Constitution gave the president unrestricted removal authority.
Still, the court has ruled. The executive branch is unitary (with the important exception of the Federal Reserve Board, whose independence, the court thinks, is justified by historical understandings about monetary policy). What difference will this make?
The president may now fire the heads and control the policy decisions of a large number of once-independent agencies. From 2009 to 2012, I headed the White House Office of Information and Regulatory Affairs, which oversaw — and could veto — regulations desired by executive agencies such as the Department of Transportation and the Department of Commerce, but not at-the-time independent agencies such as the Federal Trade Commission. This oversight process gives the White House a lot of power. The Supreme Court just validated President Trump’s efforts to subject the formerly independent agencies to review by the office I used to head.
White House control increases political accountability, which can do some good. But it imposes big risks, too. There is more room for self-dealing, favoritism and corruption, whatever political party controls the presidency.
Now that the White House is in charge of the F.C.C., for example, the president may reward his political friends and punish his political enemies in ways that threaten freedom of expression and that might not be visible to the public. If the White House orders the F.C.C. to take action against a broadcasting station, perhaps because it is critical of the president, the F.C.C. might follow those orders.
Empowered to oversee the Federal Trade Commission and the National Labor Relations Board, the White House may protect its favorite companies and threaten its least favorite ones. The decisions of the Nuclear Regulatory Commission and the Consumer Product Safety Commission are suddenly subject to presidential control. For agencies whose decisions are highly technical and should not be fundamentally political, that could be dangerous.
Then there’s the question of whiplash. For a long time, the decisions of the formerly independent agencies have shifted with the election of a new president, because the president gets to fill vacancies and to appoint their chairs. But if they are subject to control by a Republican president in early January and then a Democratic president in late January, the level of instability will increase, producing the “revolution” against which Hamilton warned.
Unprecedented politicization of, well, everything? Right now? In 2026?
The beginning of the end of the administrative state
By Philip Hamburger
The Supreme Court on Monday re-centered executive power in the president, restoring his authority to remove executive branch officials and ending the independence of government agencies. In the Trump era, some may fear that this decision leaves the president with too much power. More likely, the court will follow up by stripping federal agencies of some of the vast administrative powers Congress has unconstitutionally diverted to executive officials — powers that do not belong to their branch of government.
The court is on firm legal ground. The Constitution elaborately restricts the president’s appointment power but says nothing about dismissing executive branch officials. It follows that the president’s executive power to dismiss subordinates is constitutionally unqualified. This makes sense, for without the ability to fire wayward subordinates, the president’s executive power would be illusory. James Madison and a congressional majority in 1789 considered limiting the president’s removal authority but refused to do so, citing the Constitution. Rarely is there such clarity about how the Constitution was understood at the time of its drafting.
About a century later, a more bureaucratic vision of government began to prevail. One statute after another protected commissioners from removal, and judges grew tolerant of bureaucrats operating beyond political accountability.
The court in 1935 upheld statutory protections for commissioners on the Federal Trade Commission. The Constitution plainly assigns executive power to the president — so to justify its conclusion that the president could be barred from firing commissioners, the court engaged in some juridical gymnastics. It declared that the commission’s “executive function” was different from “executive power in the constitutional sense.” Allegedly, the F.T.C. had “quasi-legislative” power to regulate as an agency of Congress and even enjoyed some “quasi-judicial” power of the courts.
Under this strained reasoning, a growing number of agencies — including the F.C.C., the Securities and Exchange Commission and the Equal Employment Opportunity Commission — have exercised executive power independently of the president.
When the president cannot fire executive branch officials, there are as many executive powers as there are insubordinate subordinates. This does not make sense in a nation built on elective accountability. The Constitution vests a single executive power in a single person, the president, thereby clarifying both his authority and his accountability. With the ability to fire subordinates, the president has clear political responsibility for their failings, and he can fulfill his duty to “take care that the laws be faithfully executed.”
It is therefore fortunate that the court has returned the Constitution’s executive power to the president.
Far from assuring that the president will enjoy all the power exercised by the once-independent agencies, the decision will spur the judiciary to reconsider their quasi-legislative and quasi-judicial role. The regulations issued by the formerly independent agencies are a prolific form of legislation, and their commissioners and administrative law judges daily exercise judicial power. Now that these agencies are under direct presidential control, the incongruity of their exercise of legislative and judicial powers will be inescapably clear. So courts will be apt to recognize that agencies cannot safely or constitutionally exercise such powers under presidential control.
Today’s decision foretells the disintegration of the administrative state. Presidents will have more control over the executive branch — but that will mean more control over less.
Cass R. Sunstein teaches at Harvard, where he directs the Program on Behavioral Economics and Public Policy. He is the author of Separation of Powers: How to Preserve Liberty in Troubled Times. Philip Hamburger is a professor of law at Columbia Law School, the chief executive of the New Civil Liberties Alliance and a nonresident senior fellow at the American Enterprise Institute.
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