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It’s one of the foundational questions of the American experiment, debated at length (and never fully resolved) by the framers of the Constitution in 1787, their antagonists, and Americans down through the generations. At some point in the coming weeks, the Supreme Court will weigh in on it once again, and once again the right-wing majority appears determined to give us an answer that was neither intended by the founders nor desired by modern Americans.
The case at the heart of the present debate, Trump v. Slaughter, involves President Trump’s attempt to fire Rebecca Kelly Slaughter, a Democratic commissioner on the Federal Trade Commission whom he had appointed to the job during his first term. One of five commissioners (no more than three can be of the same party), Slaughter was re-nominated to a second seven-year term by President Biden in 2023.
Soon after Trump returned to power last year, he fired Slaughter and another commissioner, Alvaro Bedoya, both Democrats, claiming he had the authority to do so without cause. This violated a 90-year-old Supreme Court case, Humphrey’s Executor v. United States, which held that the law creating the FTC made clear that independent agency officials like those appointed to the FTC can be removed only for “inefficiency, neglect of duty, or malfeasance in office.” Trump did not allege anything like this against Slaughter, so lower federal courts, relying on Humphrey’s Executor, reinstated her. (Bedoya initially joined Slaughter’s suit, but later resigned for financial reasons.)
Alas, like so many long relied-upon precedents that have come before the Court in the past few years, Humphrey’s Executor seems destined for the trash heap. That was clear as soon as the Supreme Court relied on the shadow docket to stay the lower courts’ rulings reinstating Slaughter; Humphrey’s, after all, remains good law, and was directly on point. During oral arguments in December, Chief Justice John Roberts and the other right-wingers showed no qualms about, at a minimum, reinterpreting the 1935 case to allow the president to fire commissioners at the FTC (and many other agencies) for any reason he likes.
The rationale for the Court’s ultimate decision will rest at least in part on what’s known as the unitary executive theory, which asserts that because “the executive power” is “vested” in the president by Article II of the Constitution and because the president must “take care that the laws be faithfully executed,” he or she has essentially unlimited power to fire anyone in the executive branch. As Justice Elena Kagan said at oral argument last December, a ruling for Trump would “put massive, uncontrolled, unchecked power in the hands of the president.”
There are at least two big problems with the unitary executive theory. First, despite having a serious-sounding name, it’s completely made up — unmoored from the history and tradition that the right-wing justices claim to be guided by in so many of their opinions.
In fact, the Constitution says nothing about the president’s power to remove executive branch officials, a silence that has been filled from the earliest days of the nation “with a cacophony of disagreement and competing positions,” write Jonathan Gienapp and Andrew Scoseria Katz, two law professors who filed an amicus brief in the Slaughter case. Gienapp and Katz quote John Adams, who as president declined to jettison his political adversaries, even in the face of intense pressure from his allies. Doing so for nothing but a partisan reason, he said, would be “harsh and odious” and would “indicate an irritable, hasty, and vindictive temper.”
For most of the nation’s history, it was generally understood that Congress had the authority to regulate the president’s power to remove executive branch officials. Presidents accepted this arrangement by signing laws that included such regulations and by tolerating the existence of independent agencies for the past 150 years, as another amicus brief, by a historian represented by the Brennan Center, lays out.
Past Supreme Courts would have been strongly influenced by evidence of decades of mutual accommodation and power-sharing worked out between the other two branches of government. But Roberts and his right-wing colleagues are rarely swayed by evidence that doesn’t point them where they already want to go.
So where does the unitary executive theory come from, if not the founding? It rose up, like Donald Trump, in a more recent era: the 1980s. While the future president was rapidly making his name and fortune in New York City real estate, hungry young staffers in the Reagan Justice Department (including a 20-something John Roberts) were devising new ways to counter decades of Democratic rule in Congress and the White House. As they saw it, Democratic dominance helped stack executive agencies with liberals who believed in a more expansive and efficient federal government and who opposed the deregulatory revolution pushed by Reagan and his acolytes. An executive with the power to root out these roadblocks would give Republicans more power in their fight against the administrative state.
The unitary executive theory is so groundless that one leading originalist felt compelled to call it out before oral arguments last fall. “Both the text and the history of Article II are far more equivocal than the current Court has been suggesting,” Caleb Nelson, a law professor at the University of Virginia (and former law clerk to Justice Clarence Thomas) wrote in an eye-opening piece that triggered a cascade of originalist soul-searching. “The Take Care Clause does not imply that the President must be able to fire all executive officials at will, any more than it guarantees the President the ability to imprison officials who do not do what the President says.”
If the Court ignores this analysis, along with the historical evidence, and votes for a strong version of the unitary-executive theory, Nelson wrote, they will be giving the president “more power, I think, than any sensible person should want anyone to have, and more power than any member of the founding generation could have anticipated.”
Of course, let’s not forget this is the same Court that in 2024 gave the president near-total immunity for any crimes he or she might commit while in office — a decision that was similarly detached from the actual positions of the nation’s founders, including those who fought for a powerful executive, as an amicus brief by leading American historians organized by the Brennan Center explained.
I mentioned earlier that there are two big problems with the unitary executive theory. The second one is that regardless of its pedigree, it is so broad that it can’t actually be implemented consistently. Consider another case the Court agreed to decide this term, and which is likely to be delivered the same day as Slaughter: Trump v. Cook. Last year, Trump claimed the power to fire Lisa Cook, a member of the Federal Reserve Board. Based on the oral arguments in that case, it appears that a majority of the Court is prepared to reject the president’s claim of authority. How can that be, if the unitary executive theory means what it claims to mean? The answer is that this is the most pro-business Supreme Court in a century, and whatever reason they serve up in their opinion protecting Cook, the real reason is that they’re not about to let the president nuke the economy. In other words, they like expanding executive power in the service of deregulation, but not when it might injure corporate America.
Perhaps the most galling part of all this is the timing: The Court is forging ahead with its executive-aggrandizement project at the same moment that the White House is controlled by the most lawless, erratic and corrupt president in the nation’s history.
The framers would have been horrified, but they might not have been surprised. One June day in 1787, as the delegates to the constitutional convention debated the nature of the powers they should confer on a chief executive, Benjamin Franklin speculated on the inherent risks involved.
“The first man put at the helm will be a good one,” he said, referring to George Washington, who was widely expected to win the first election. “Nobody knows what sort may come afterwards. The Executive will be always increasing here, as elsewhere, till it ends in a Monarchy.”
Nearly 250 years later, the Supreme Court is doing what it can to make Franklin’s prediction come true.
