In a stunning expansion of presidential powers, the Supreme Court on Monday overruled a 90-year-old precedent and held that Congress cannot limit the president’s removal of federal agency heads. The ruling in Trump vs. Slaughter is a major diminishing of checks and balances and again shows the six conservative justices’ disregard for even long-standing precedents.
In 1935, in Humphrey’s Executor vs. United States, the court unanimously held that Congress could prevent the president from firing commissioners on the Federal Trade Commission unless there was just cause. The court explained that Congress, to carry out its powers, could create federal agencies with some independence from the president and thus could limit removal of commissioners only “for inefficiency, neglect of duty, or malfeasance in office.”
On many subsequent occasions, the Supreme Court reaffirmed this holding. For example, in 1988, in Morrison vs. Olson, the court in a 7-1 decision held that Congress could authorize the appointment of an independent counsel to investigate alleged wrongdoing by the president or high-level executive officials and could limit firing to where there was found to be just cause.
Then-Chief Justice William Rehnquist, a staunch conservative, wrote the opinion for the court. In it, he explained that, “In Humphrey’s Executor, we found it ‘plain’ that the Constitution did not give the President ‘illimitable power of removal’ over the officers of independent agencies. Were the President to have the power to remove FTC Commissioners at will, the ‘coercive influence’ of the removal power would” threaten independence of the commission.
But Humphrey’s Executor is no more.
Trump vs. Slaughter involved Rebecca Slaughter, a Democrat who, like in Humphrey’s Executor, was appointed to the Federal Trade Commission. In 2018, President Trump nominated, and the Senate unanimously confirmed, Slaughter to serve as an FTC commissioner. In 2024, Slaughter was reappointed by President Biden and confirmed by the Senate for a second term.
However, Trump, upon taking office in 2025, fired Slaughter, along with the heads of many other federal agencies, without any claim of cause. Trump argued that, as a “unitary executive” with all executive power vested in the president, he could thus fire anyone in the executive branch. This is exactly the argument that the court expressly and overwhelmingly rejected in Morrison vs. Olson.
The Supreme Court, in a 6-3 decision Monday, with the majority opinion written by Chief Justice John G. Roberts Jr., ruled against Slaughter, upending Humphrey’s Executor and embracing the unitary executive theory. The court concluded its opinion: “To ‘discharg[e] the duties of his trust,’ the President must have the assistance of officers he can trust. … Neither Congress nor the courts may saddle him with those with whom he cannot work. Subordinates who exercise the President’s power are subject to removal by him.”
There is so much that is deeply troubling about this expansion of presidential power. To begin with, it is the court once again overruling a longstanding precedent for no reason other than the conservative majority disagrees with it. As Justice Sonia Sotomayor wrote in her dissent: “Ninety years of precedent and 140 years of consistent political practice should have been more than enough to resolve this case.”
For decades, Congress has relied on Humphrey’s Executor and created myriad federal agencies — the Securities and Exchange Commission, Federal Communications Commission and National Labor Relations Board, to name a few — with commissioners who can be fired only for cause. This was meant to provide the commissioners some degree of independence from the president. Contrary to Roberts’ assumption, these agencies and their officials were not exercising the president’s power, but Congress’ authority. As Sotomayor explained, this was to prevent these “agencies becoming mere political instruments, which could be turned against political enemies with one hand and used to grant favors to allies with the other.”
Are there any limits on the ability of Congress to limit presidential firing? Trump claims that even civil service protections that have existed since the late 19th century are unconstitutional. In Trump vs. Cook, another case decided on Monday, the court held against Trump’s efforts to remove Lisa Cook, a governor on the Federal Reserve Board. However, in that case the court ruled very narrowly, holding just that the federal statute required that she be provided notice and a chance to respond before being fired.
Cook was appointed to the Federal Reserve’s Board of Governors in 2022, at first to complete only the final two years of an unexpired term. A year later, however, Biden nominated Cook to a full 14-year term, and the Senate again voted to confirm her. Cook’s term on the Federal Reserve is set to expire in 2038. As with the FTC, federal law allows removal only for good cause. Trump fired Cook anyway, claiming that she had engaged in mortgage fraud. No court or agency has found that Cook did anything wrong.
In a 5-4 decision, with the majority opinion written by Roberts, the court ruled in favor of Cook on the narrow ground that she “was entitled to notice and some opportunity to respond prior to her termination.” The court stressed the unique role of the Federal Reserve Board, tracing its history back to the first Bank of the United States during the presidency of George Washington. But the court unfortunately made no effort to distinguish its ruling in Trump vs. Slaughter and clarify whether, and if so when, Congress ever can limit presidential firings of those within the executive branch.
The bottom line of these decisions was succinctly stated by Sotomayor in her dissent in Trump vs. Slaughter: “The result is a President who emerges with far greater power than ever before.” It is ironic for the court to make this ruling during the week in which we celebrate the 250th anniversary of the Declaration of Independence, which was written as an objection to unchecked executive power.
Erwin Chemerinsky is the dean of the UC Berkeley Law School.
The post The Supreme Court just handed the president even more power appeared first on Los Angeles Times.
