Policy Backgrounders

The Supreme Court and the Limits of Agencies’ Powers

December 09, 2025

The Supreme Court heard oral arguments in Trump v. Slaughter, a case with major implications for the future of the administrative state, testing whether the President can fire Commissioners of independent regulatory agencies without cause and at will. The Court seems likely to uphold that authority, but many questions might still remain regarding the extent of other powers of these agencies such as the Federal Trade Commission, the Federal Communications Commission, the Securities and Exchange Commission, and other similar agencies. 

• Some Justices have long criticized the administrative state for being unaccountable and having too much power; other Justices worry that permitting removal without cause could concentrate too much power in the President.
• Congress wrote many statutes governing these agencies to seek something of a partisan balance; if the Court upholds removal authority, it would likely be because the agencies have come to hold what it views as too much executive power.
• While a decision in favor of the President could have implications for the Federal Reserve, a majority of the Court, using a different line of cases, seems prepared to hold that the President cannot fire Governors of the Federal Reserve Board without cause.
• Businesses should follow the decision closely beyond the question of removal authority for its potential implications for powers of these agencies including regulatory policy, enforcement policy, and enforcement actions.

Commissioner Slaughter and Commissioner Humphrey

Early in the Administration, the President fired Rebecca Slaughter, a Commissioner of the Federal Trade Commission (FTC) originally appointed to a Democratic seat on the FTC in 2018 by President Trump and confirmed by the Senate. The firing occurred despite a provision in the FTC’s governing statute that commissioners may be fired only for “inefficiency, neglect of duty or malfeasance in office [.]” She sued, winning in Federal district court and appellate court; the Supreme Court has now heard her case (Trump v. Slaughter).

Much of the case concerns the application of Humphrey’s Executor, a 1935 case in which the Supreme Court ruled unanimously that the President cannot remove commissioners (in the language of the decision, “members”) of “multi-member agencies” such as the FTC at will. Solicitor General John D. Sauer said the decision supports a “headless fourth branch of government,” in contrast to the view Article II of the Constitution vests all executive authority in the Executive Branch, whose head is the President (the “unitary executive theory”).

Consistent with the unitary executive theory, the argument runs that the President should have the power to fire Commissioners of multi-member agencies because they exercise executive power. (Humphrey’s Executor itself noted that the agencies (and thus their commissioners) exercise “quasi-legislative” and “quasi-judicial” power.)

In contrast, three Justices argued that a decision against Slaughter would put “massive, unchecked power in the hands of” the President (Justice Elena Kagan), and Justice Ketanji Brown Jackson highlighted the independent regulatory agencies’ role as expert agencies rather than simply political bodies, even if commissioners are politically appointed.

While Sauer argued that independent regulatory agencies lack “political accountability and democratic control,” they do have accountability – most directly to the Federal courts, second to Congress which controls their appropriations, and third to Presidents who nominate their members. This system of accountability is at least as robust as one giving the President control over removal with no limiting principle in the statute.

After Oral Argument

The most likely outcome seems to be that the Court will allow the firing of Commissioner Slaughter, continuing a line of cases that has expanded the President’s ability to fire members of the Executive Branch (for instance, at the Consumer Financial Protection Bureau and the Merit Systems Protection Board).  As the Court wrote in a decision earlier this year on two removals, “[b]ecause the Constitution vests the executive power in the President he may remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions recognized by our precedents.”

The fate of Humphrey’s Executor itself, however, is more in question. While the Chief Justice referred to it as a “dried husk” in oral argument, the Court has expanded Presidential removal power without actually overturning it (Seila Law v. CFPB, Free Enterprise Fund v. PCAOB), and the pattern could recur. In essence, the Court could argue that the FTC has accrued executive power it did not have in 1935, justifying removal. Further, overturning the decision could effectively overturn statutes that require that Commissioners be members of different political parties or political independents, on the ground that the requirement to pick a member of one party to maintain the partisan balance Congress put in the statute (such as the President did in 2018 with Commissioner Slaughter) on a commission would restrict the President’s powers.

Some Justices, including Justice Amy Comey Barrett, seemed to be seeking a narrow ground for a decision. She asked what Congress might do decades from now if the Court grants a broad removal power to the President.

Is the Federal Reserve Different?

This is the first of two major cases the Court will hear in its regular docket regarding the President’s removal powers. The second, Trump v. Cook, concerns whether the President can remove a Governor of the Federal Reserve Board (Lisa Cook) at will. Most legal observers think Cook will win; the Chief Justice has argued that a separate line of cases supports the independence of the Federal Reserve from the Executive Branch, and during oral argument in Trump v. Slaughter, Justice Brett Kavanaugh signaled he would support that view, presumably providing a fifth vote in addition to the Chief Justice and Justices Sotomayor, Kagan, and Jackson.

Conclusion

Without Humphrey’s Executor, it is difficult to imagine the administrative state as it currently exists. It is also hard to imagine that Congress would take up the work, often highly specialized work, that regulatory agencies do. While some of these agencies have extended their regulatory remit significantly, they have traditionally argued that they have done so under a structure which Congress explicitly enacted – multi-member agencies with commissioners serving staggered terms and a rough partisan balance (though with the President generally able to designate a chair from his own party).

Because a new President is able to nominate a chair from his own party at virtually all independent regulatory agencies, the practical impact of the prohibition on removal has been minimal; for instance, the debate over regulation on “net neutrality” seesawed back and forth with the change of Administrations for over ten years until an appellate court finally ended the matter. It is typical for decisions at agencies such as the FTC, the Federal Communications Commission, and the Securities and Exchange Commission to be 3-2, with commissioners of the President’s party in the majority.

For business, the principal impact of the decision, therefore, would be the impact on the development of future regulation and policy concerning development of enforcement policy and execution of enforcement actions. While business may welcome greater efforts to achieve consistency of regulation across the Executive Branch, removing agencies’ full independence – or the impression of it – regarding enforcement actions and other areas in which business may benefit from an impartial arbiter at least somewhat removed from the political process.  Businesses should watch the results of Trump v. Slaughter with care for clues as to what the expected expansion of Presidential power means for the limits of these agencies’ future powers. As Justice Kagan remarked in oral argument, “Logic has consequences.”