The End of Independent Agencies

Humphrey’s Executor v. United States is dead. At the close of its term, the Supreme Court held in Trump v. Slaughter that the President may remove members of the Federal Trade Commission (FTC) for any reason, including policy disagreements. Six justices (the Court’s conservatives) concluded that the statutory language limiting removal of commissioners to “inefficiency, neglect of duty, or malfeasance in office” is unconstitutional. 

“Our Constitution creates three branches, but only one President,” Chief Justice John Roberts explained in his opinion for the Court. “He and he alone is vested with ‘[t]he executive Power’ of the United States,” and he alone is charged with the power and responsibility to, in the words of Article II, “take Care that the Laws be faithfully executed.”  Accordingly, Chief Justice Roberts explained, the President must have the authority to remove those officers, such as the heads of regulatory agencies, in whom he lacks confidence or trust. “[T]hese officers exercise the President’s power, not their own, and thus must be re­sponsible to him,” the Chief Justice added, and such responsibility can only be assured if those officers are removable. 

While the outcome was nearly assured, Slaughter is nonetheless a significant legal development. In Humphrey’s Executor (1935), a unanimous Supreme Court concluded that Congress can insulate the heads of at least some administrative agencies from presidential removal to protect their independence and insulate the exercise of “quasi-legislative” and “quasi-judicial” powers from executive branch control. On this basis, the Court rejected Franklin D. Roosevelt’s asserted power to remove William E. Humphrey from the Federal Trade Commission. 

For nearly a century, the FTC and many other federal administrative agencies—the Federal Communications Commission, National Labor Relations Board, Federal Energy Regulatory Commission, and so on—were formally insulated from presidential control through removal restrictions. Yet for much of that time, the Court’s rationale in Humphrey’s Executor was questioned, if not dismissed. Formal independence for some agencies—largely those structured as multi-member boards and commissions—persisted. 

In several opinions over the last twenty years, the Court chipped away at the Humphrey’s edifice. In Free Enterprise Fund v. Public Company Accounting Oversight Board (2010) and Seila Law LLC v. Consumer Financial Protection Bureau (2020), the Chief Justice wrote opinions stressing the President’s need for a removal power so as to ensure that those officers exercising executive power remained under presidential control. While those decisions carefully distinguished Humphrey’s Executor, they also eroded the constitutional foundation upon which it stood. If an administrative agency exercises core executive-branch power, such as administering and enforcing regulatory schemes, whether the agency has a single head or is overseen by a multi-member commission should not affect the constitutionality of the arrangement. No longer. “If anything more is left of Humphrey’s, we overrule it,” the Chief Justice proclaimed. 

In the future, presidents will no longer have to wait for the statutory terms of agency officials to expire (or for officials to leave voluntarily) before assuming control of affected agencies. They will be free to remove those appointed by their predecessors and nominate successors immediately upon taking office. With a few notable exceptions, Presidents will not face the prospect of federal agencies making decisions counter to their agenda. 

While Slaughter appears to embrace a categorical rule, the Chief Justice’s opinion acknowledged some potential exceptions, most notably the Federal Reserve. The Court decided Trump v. Cook on the same day as Trump v. Slaughter, and in that decision—again in an opinion by the Chief Justice—the Court held that the President’s removal power did not fully extend to monetary policy. Whereas Slaughter was decided 6-3, Cook was 5-4, with the Chief Justice and Justice Kavanaugh joining the Court’s liberals. 

Declaring that Congress could insulate the Fed from Presidential control was unnecessary to resolve the question before the Court in Cook, as the case concerned the narrower question of whether courts could enjoin the removal of a member of the Federal Reserve pending consideration of the grounds for removal and the procedures provided. Nonetheless, the Chief Justice sought to quell concerns that a President might seek control over the Fed. And while the Fed exercises some regulatory authority over the financial system, the Chief Justice thought that the long history of federally created banking institutions independent of the executive branch, including the First and Second Banks of the United States, supported an exception to the general rule of removal. The Chief also left open whether the removal power extends to those performing adjudicatory functions in so-called “non-Article III courts,” such as the Tax Court and the Court of Federal Claims. 

While the formal overruling of Humphrey’s Executor is significant, it may be some time before there is practical fallout, as few (if any) regulatory agencies have been “independent” in any meaningful sense for quite some time. On the contrary, most purportedly independent commissions have begun to operate more like traditional executive branch agencies, under the ultimate control of the president. 

Twenty first century presidents have rarely named agency heads for their independent expertise and judgment. Rather, presidents have made appointments who can be trusted to faithfully execute the president’s policy vision. It has become rare for agency heads to diverge from their appointing President’s agenda, and even the heads of ostensibly “independent” agencies have fallen into line when directed by the White House. Whether or not he was taking express direction from the White House, Federal Communications Commission Chair Tom Wheeler announced the agency would embrace “net neutrality” after it was urged to do so by President Obama. Current FCC Chairman Brendan Carr is consistently and reliably singing from the Trump Administration hymnal.  

Just as legislative leaders have exercised less independence from presidents of their own party, members of independent agencies have divided more clearly and consistently into reliable voting blocs. Here, as elsewhere, the separation of powers has become more the separation of parties. Combined with the increased centralization of power and control by the Chairs of some agencies, as appears to have occurred at the FTC during Lina Kahn’s tenure as Chair, the composition of multi-member agencies has become far less important than who holds the Chair position. At the same time, it has become common practice for agency Chairs to step aside when a new President is inaugurated, as Kahn did once Trump began his second term, even though their terms often extend well beyond a four-year presidential term. 

There are exceptions here, some of which are important. The Federal Election Commission (FEC), for example, has an even number of commissioners to prevent partisan action. Slaughter would seem to indicate that the President can remove FEC commissioners at will, but this will not enable a president to control what the FEC does. Removing members of the FEC the President does not like will not ensure the FEC aligns with the President’s agenda. But it appears to allow the President to disable the FEC from acting. In the wake of Slaughter, the President removed all remaining members of the Election Assistance Commission, potentially leaving it unable to assist states with election administration or to establish rules governing mail voter registration applications.  

Many of the affected boards and commissions also have quorum requirements that prevent them from taking certain actions without enough commissioners or board members in place. Removing members of such agencies may prevent them from acting contrary to the President’s wishes, but it could also prevent the agency from acting at all, particularly if the Senate does not cooperate by quickly confirming a President’s replacement nominees. Unlike traditional executive-branch agencies, vacancies on multi-member commissions cannot be filled with interim or acting appointments under the Federal Vacancies Reform Act. So while a President may wish to remove members of the National Labor Relations Board (NLRB) deemed too solicitous of unfair labor practice complaints filed by unions, if removing board members leaves the NLRB without a quorum, it could bar the Board from ruling in favor of complaints brought by employers as well, and prevent the revision or rejection of disfavored agency precedent.  

Overturning Humphrey’s Executor has been a longstanding aim of the conservative legal movement. The late Justice Antonin Scalia’s solo Morrison v. Olson dissent convinced a generation of jurists that the Constitution creates a “unitary” executive that must be under the President’s complete and unobstructed control. While there may be a conservative consensus that the executive branch should be unitary, there is deeper disagreement over the scope of power it should wield. Some see a powerful executive as a means of ensuring elections have consequences. Others see the executive branch as something that needs to be cut down to size. 

In a separate Slaughter concurrence, Justice Gorsuch spoke for this latter view. Ensuring a unitary executive helps ensure political accountability, but it can also threaten liberty if the scope of executive power is too broad. Wrote Gorsuch: 

By recognizing that the President is entitled to remove a principal officer who exercises executive power in his name, the Court does much to vindicate what Franklin D. Roosevelt and James Madison both understood: Under our Constitution, executive power does not belong to a “headless ‘fourth branch,’” but must be exercised through a “chain of dependence” running from “the lowest officers” to “the President,” and from him to the American people. 

At the same time, it would be a grave mistake to think that this step is enough on its own. The fact remains that Congress has endowed formerly independent agencies not just with executive authority, but with enormous legislative and judicial powers as well. And now the President enjoys control over all those powers too. From here, the only sure path is to finish the journey we start today and restore legislative and judicial powers to where they belong: in Congress and the courts. We have tolerated adventurous theories long enough. It is time to return, all the way, to the Constitution. 

Justice Gorsuch is prepared to start on this journey. We will see how many other justices are willing to join him.  

Jonathan H. Adler is the Tazewell Taylor Professor of Law and William H. Cabell Research Professor at the William & Mary Law School.