Why It Matters

A recent Congressional Research Service report examines the fallout from the Supreme Court's overhaul of presidential removal authority. On June 29, the Court issued a 6-3 decision in Trump v. Slaughter that struck down statutory protections preventing the President from firing Federal Trade Commission commissioners at will.

The ruling dismantled nearly a century of law, leaving Congress and the administration grappling with fundamental questions about agency independence and presidential power. The stakes are high: dozens of agencies rely on similar removal restrictions, and the Court left multiple questions unresolved about how broadly the decision applies.

The Big Picture

The Supreme Court's majority, led by Chief Justice Roberts and joined by Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett, grounded its decision in Article II's Vesting Clause. The majority reasoned that the Constitution creates a unity of executive power requiring all executive branch officials to be answerable to the President through at-will removal. The Court held that the FTC exercises significant executive authority including promulgating binding regulations, conducting in-house adjudications, and bringing suit in federal court, making removal protections unconstitutional.

The Trump v. Slaughter decision overruled Humphrey's Executor v. United States. Humphrey's Executor had held that Congress could limit the President's ability to fire members of commission-style agencies that performed quasi-legislative and quasi-judicial functions. Justice Sotomayor, joined by Justices Kagan and Jackson, dissented, arguing that the decision unsettled over a century of law dating back to the Interstate Commerce Commission established in 1887.

The administration had been operating on the legal theory before the decision was handed down that for-cause removal protections were unconstitutional. Members of at least eight independent agencies filed lawsuits challenging their removal, including Gwynne Wilcox, who was removed from the National Labor Relations Board. A federal district court initially reinstated Wilcox after holding that the President's action violated the applicable statutory removal limitation, though the government sought a stay of that ruling.

The Bottom Line

The Court's decision raises unresolved questions that will shape the regulatory landscape for years. The majority explicitly limited its ruling to exclude non-Article III courts and did not address whether the President can directly remove inferior officers or whether Congress can protect them. The Court recognized only two remaining scenarios in which Congress could insulate an officer from at-will removal: multi-member expert agencies that do not wield substantial executive power and inferior officers with limited duties.

Congress retains some tools to constrain agency action even without removal protections. The Administrative Procedure Act and the Paperwork Reduction Act offer procedural mechanisms, and statutory quorum requirements, such as those in the National Transportation Safety Board statute, could limit presidential control. Justice Gorsuch's concurrence noted that a President would likely veto any legislation that diminished his newly confirmed regulatory power. The CRS report identified that dozens of agencies headed by multimember boards or commissions, such as the National Labor Relations Board, the Federal Energy Regulatory Commission, and the Federal Reserve, have similar or identical statutory removal provisions to those struck down.

In a separate case decided the same day, Trump v. Cook, the Court upheld for-cause removal protections for Federal Reserve Board governors due to the Fed's distinct historical tradition, offering a narrow exception to the broader principle the majority announced.

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