Unbiased

The Firing Power: Should the President Be Able to Remove Independent Regulators at Will?

In overruling a ninety-year-old precedent to let the President fire Federal Trade Commission members at will, the Supreme Court reopened a question serious constitutional thinkers still split on: whether democratic accountability or expert insulation better serves the public.

9 min read2026-07-12

A ninety-year rule, reopened in one ruling

On June 29, 2026, the Supreme Court decided Trump v. Slaughter, holding that the statute shielding Federal Trade Commission members from removal except "for cause" is unconstitutional and that the President may fire them at will.¹ In reaching that result the Court, by a vote of six to three, overruled Humphrey's Executor v. United States, the 1935 decision that had upheld exactly such protection and anchored the modern independent agency for nine decades.² The case reached the Court because, in March 2025, President Trump removed the FTC's two Democratic commissioners, Rebecca Slaughter and Alvaro Bedoya, without identifying any statutory cause, telling them their service was inconsistent with his administration's priorities and that he was acting under Article II.²

Humphrey's Executor and "for cause" The Federal Trade Commission Act lets a President remove a commissioner only for "inefficiency, neglect of duty, or malfeasance in office." In 1935 a unanimous Court upheld that limit, reasoning that the FTC's work was "neither political nor executive, but predominantly quasi-judicial and quasi-legislative," and so could be insulated from at-will dismissal. That holding is what Slaughter discards.³

The question the Court agreed to decide was framed in the alternative: whether the FTC's removal protection violates the separation of powers and, if so, whether Humphrey's Executor should be overruled.⁴ The lineup tracked the Court's now-familiar division: Roberts wrote for himself and Justices Alito, Gorsuch, Kavanaugh, and Barrett, with Justice Thomas joining all but one part and Justices Kagan and Jackson joining the dissent.⁴ In practical terms little changed at the agency overnight; the FTC's pending cases and rules carried on. What changed is the tenure of its commissioners, who now serve at the President's pleasure, removable mid-term for any reason or none. The consequences run well past one agency. Similar for-cause shields protect the National Labor Relations Board, the Securities and Exchange Commission, the Consumer Product Safety Commission, and the Merit Systems Protection Board, among others; a rule that voids the FTC's reaches theirs too.⁵

What divides serious constitutional thinkers is not whether the ruling matters. It plainly does. The disagreement is whether a President's control over those who exercise federal power is a constitutional command that the old regime evaded, or whether the insulation the old regime provided was a deliberate and defensible feature of how Congress built the administrative state. One camp reads the Constitution as vesting all executive power in a single elected officer who must be able to remove his subordinates. The other reads ninety years of settled structure as worth more than a formal theory, and the power it hands the President as more than the office should hold.

The Court's majority and unitary-executive originalists

Article II vests the executive power in one President, so every official who wields that power must answer to him; for-cause armor on executive officers is both unconstitutional and a screen against democratic accountability.

The majority's premise is textual and structural. The Constitution gives the executive power to a President, and, as Chief Justice Roberts wrote, "the President must have the assistance of officers he can trust";² the Senate may refuse to confirm, but "neither Congress nor the courts may saddle him with those with whom he cannot work."⁵ Because the FTC "unquestionably exercises executive power," on this reading it cannot be walled off from the officer the Constitution makes accountable for executing the law.²

The scholarly case is older than the ruling. Steven Calabresi, who helped originate unitary-executive theory and filed an amicus brief urging this outcome with former Attorneys General Edwin Meese and Michael Mukasey, calls the decision a "triumph of originalism and textualism over the so-called pragmatism offered by the three dissenters," and argues the theory means "the President has the power to remove at will anyone who is exercising executive power."⁶ The accountability point is the one the camp presses hardest to a lay reader. Independent commissioners answer to no voter directly; the President does. As Manhattan Institute constitutional scholar Ilya Shapiro puts it, if the public dislikes how the FTC enforces the law, it "should be able to blame — and replace — the president, not chase a goulash of insulated mandarins," and the President still "remains constrained by statutes, appropriations, courts, Congress, elections, and the Constitution itself."⁷ An agency that reports to no one the electorate can reach, the camp holds, is the anomaly the Constitution never authorized.

The originalist claim is that this is restorative, not novel. Calabresi argues the outcome followed from first principles, that "text and original public meaning were all that was required to resolve the question," and that Humphrey's had itself been the departure: a nine-page opinion, on this account, that carved commissions out of a removal power the First Congress had already recognized in the executive.⁶

Chief Justice John Roberts, standing here because he wrote the controlling opinion for the Court and set out, in his own name, the constitutional rationale for at-will removal.¹

The dissenters and defenders of the independent agency

A ninety-year structure lets bipartisan expert commissions enforce law and steward markets at a remove from partisan control; collapsing it into at-will removal concentrates a power the office was never meant to hold.

This camp starts from consequence and design. Writing for the three dissenters, Justice Sotomayor warned that "dozens of independent commissions are now likely to become purely executive agencies, shifting tremendous power over broad swaths of American life into the President's hands," and that ordinary Americans "have organized their affairs understanding that some Government functions should operate at a distance from partisan politics."⁸ She read the majority as trading "90 years of proven, workable practice" for "a half-baked theory of executive power,"⁸ and warned it handed the President "a power unknown even to the English Crown against which the Founders revolted."⁵

The structural case is that Congress built on this insulation deliberately. Peter Shane, an administrative-law scholar at Ohio State, notes that Congress has "repeatedly relied on Humphrey's Executor since 1935 to create roughly two dozen new independent multimember boards," a design meant to foster "deliberation" and to "reduce the prospects for agency capture by special interests."⁹ The protection, on this view, is not insulation from democracy but from a specific abuse: it keeps a President from "removing administrators unwilling to reward a president's friends or punish his enemies."⁹ Strip it away and a commission built to weigh evidence across party lines becomes, in practice, an extension of one officer's will, with the expertise and continuity that justified independence the first casualties.

The stakes, on this account, are concrete. Sotomayor listed the functions the design was meant to hold at arm's length from any one President: "the management of nuclear energy; the security of the monetary supply; and the safety of American workplaces, consumer products, and chemical hazards."⁸ Each, the camp argues, is a domain where continuity and evidence should outlast an election, and where a commissioner removable for crossing the White House cannot credibly promise either.

Justice Sonia Sotomayor, standing here because she wrote the dissent for three Justices and set out, in her own name, the constitutional and practical case against at-will removal.¹

The carve-out that reveals the real disagreement

Strip the rhetoric and the two sides agree on the facts. A ninety-year precedent is gone; the President may now remove FTC commissioners at will; the same logic reaches across the independent agencies. What they dispute is a value in tension, and beneath it a question the majority left conspicuously open. The value: whether the accountability the removal camp prizes is worth the insulation the independence camp says the public loses. The open question sits in a single exception. The Court did not extend its holding to the Federal Reserve, which Roberts suggested may keep its protection "to the extent that it follows in the distinct historical tradition" of the early national banks; in the companion case Trump v. Cook, a divided Court let Fed Governor Lisa Cook keep her seat pending further litigation.²⁵

That carve-out is where each camp's logic strains, which is why it is the crux. If the executive power truly cannot be divided, a central bank that regulates lending and sets monetary policy looks as executive as an antitrust commission, and the exception looks unprincipled. Saikrishna Prakash, a leading unitary-executive scholar whose work both opinions cite, says as much: he reads the majority as maximalist yet thinks "the Chief thought the less we say the better, in part because he can't justify the exception," calling the opinion a "brushback pitch" to Congress rather than a settled rule.¹⁰ Run the same test from the other side and the exception cuts the other way: if the Fed's insulation is constitutionally tolerable because it serves a function markets need kept out of politics, the independence camp's whole argument for the FTC gains footing. The single word the majority would not fully explain is the word both sides need answered.

The dispute also reaches a premise the ruling asserted more than it proved: that enforcement, rulemaking, and adjudication are alike "executive" in the sense that demands presidential control. Even Prakash, who thinks the Court reached the right result, is skeptical here, noting it is "hard to see how adjudication is executive when we have a whole branch dedicated to adjudication."¹⁰ If a commission that adjudicates and writes rules is not exercising the President's own power in the first place, the case for stripping its independence weakens; if it is, the Fed's exemption grows harder to defend. The Court answered neither, which is precisely why reasonable people can read the same opinion and reach opposite conclusions about where it leads.

What would move a fair reader is evidence not yet in, and this is a forecast time will settle. The removal camp predicts a more accountable, responsive government once the President can direct the agencies that "issue orders to subordinates" across "dozens of major governmental institutions and millions of employees."¹¹ The independence camp predicts politicized enforcement and, in Sotomayor's word, "chaos."⁸ The first data arrives on a knowable horizon: how the administration uses the removal power at the NLRB, the SEC, and the FTC over the coming year, and whether Trump v. Cook returns to force the Court to say whether the Fed's exception is a principle or a convenience. Justice Gorsuch, concurring, called the ruling only "a notable step back toward the Constitution," signaling the doctrine may still expand.² Whether at-will control delivers accountable governance or corrodes the expertise it commands is the wager now running, and the record will be written in how the power is used.

A ninety-year rule, reopened in one ruling

The Court's majority and unitary-executive originalists

The dissenters and defenders of the independent agency

The carve-out that reveals the real disagreement

Sources