As the media celebrated and played up what they saw as rebukes by the Supreme Court to the Trump administration over birthright citizenship and the firing of a Federal Reserve official, it was unsurprising that a potentially more significant victory for the President and for constitutional government received little attention. The case is Trump v. Slaughter, decided on June 29, 2026. It arose when President Trump fired Rebecca Slaughter, a commissioner of the Federal Trade Commission (FTC), as well as another Democrat, Alvaro Bedoya. On an ironic side note, Slaughter had been appointed to the FTC initially by Donald Trump in his first term.
Trump did not claim that they were fired for any cause provided under the 1914 federal law which established the FTC. Rather, they were removed for policy reasons, i.e., political disagreement. Slaughter and Bedoya sued to retain their jobs. After the predictable intervention against the President by lower courts, the Supreme Court issued an order which effectively permitted Trump to fire Slaughter while the case was on appeal. For the administration, this was a positive sign that the constitutional issue ultimately would be resolved in the President’s favor.
The constitutional dispute in Slaughter centers on the scope of the President’s power to fire officials within the unelected bureaucracy, and whether that power can be limited by Congress purportedly to preserve those officials’ independence. Put another way, may Congress by statute effectively set up an entire fourth branch of government not established under the Constitution and beyond effective control?
Humphrey’s Executor v. United States and the beginning of the Supreme Court’s “independent agency” doctrine in support of the bureaucratic state
The issue is not new. The President’s power to fire government officials has been a topic of vigorous debate since the Constitution was proposed and has been at the center of some major political confrontations between the President and Congress. In particular focus in Slaughter is the 1935 Supreme Court case Humphrey’s Executor v. United States. Like President Trump in Slaughter, President Franklin Roosevelt (FDR) had tried to fire a commissioner of the FTC, William Humphrey. Like Trump, Roosevelt admitted that the firing was political because his administration’s policies could be carried out more thoroughly if he appointed its members. In establishing the FTC, however, Congress had limited the President’s power to remove its commissioners to certain causes, namely, inefficiency, neglect of duty, or malfeasance in office. “Inefficiency” seems to be a rather malleable concept, and one also wonders what an objective baseline standard for efficiency is in a federal bureaucracy.
The Supreme Court unanimously held that Roosevelt could not remove the conservative Republican Humphrey because the FTC was a quasi-legislative and quasi-judicial body which Congress had meant to place beyond the President’s control. Unlike officers who exercise executive power and, thus, are subject to full presidential control, the FTC (and, by extension, other agencies with similar structure) are “independent” agencies. The ruling in Humphrey’s Executor would appear to settle the matter in Slaughter on principles of stare decisis, and so the lower courts held.
To explain, the FTC has several functions. It makes rules, for example regarding monopolistic and other anti-competitive practices. This is “legislative”; however, because the extent of the FTC’s rule-making is defined by congressional legislation, the Humphrey’s Executor opinion deemed it “quasi-legislative.” The FTC can undertake civil actions against alleged violators of those rules. In that sense, it carries out an “executive” function. Arguably, the FTC does not have full prosecutorial and enforcement powers, so it might be characterized as “quasi-executive.” The Court in Humphrey’s Executor went further and ruled that FTC officials performed an executive function but did not exercise any portion of executive power, a feat of linguistic legerdemain that had little basis in fact at the time and has none today.
Finally, the FTC can adjudicate disputes brought before it by its staff. This is a judicial function. However, because this is initially an internal administrative process undertaken by administrative law “judges” and commissioners, none of whom are given the constitutional protections of traditional federal judges (“Article III judges”), such as lifetime tenure, and because the FTC decisions can be reviewed by a federal appeals court, this became known as “quasi-judicial.” Much constitutional weight was placed in Humphrey’s Executor on the term “quasi.”
One can readily discern that such agencies, in combining legislative, executive, and judicial functions, “quasi” or not, lack the functional separation of powers which the Constitution establishes for the general government’s political structure. Hence, for traditional textualists of the Constitution, such agencies are wanting in constitutional legitimacy. For supporters of a powerful administrative state governed by an unelected bureaucratic elite of supposed experts and (barely and hesitantly) supervised by Congress and an unelected judicial elite, these agencies have been a welcome development of supposedly efficient government since the days of Progressivism in the early 20th century.
Humphrey’s Executor was constitutionally suspect under the Supreme Court’s 1926 holding in Myers v. United States, which had upheld a broad power of presidents to fire policy-making officers, even minor executive officers. However, Humphrey’s Executor was technically distinguishable. Unlike the postmaster in Myers, who had no rule-making or adjudicatory authority, the FTC had these non-executive functions. Moreover, the 1876 law under which that postmaster operated guaranteed his tenure for four years and required the President to obtain the Senate’s consent for any early removal, an arguably more serious and politically manipulable infringement of the President’s role as chief executive than merely limiting his removal power to specified causes. Requiring Senate consent in each individual removal case allows the Senate to reward or punish the President by consenting or withholding consent depending on the political landscape when the matter arises. Setting specific rules ahead of time for when officers may be dismissed at least limits immediate political considerations, because the rules apply no matter who is President and which party controls the Senate.
Franklin Roosevelt reacts to the Court’s curtailment of executive power
FDR decried Humphrey’s Executor as a patently erroneous invasion of his executive power. He assembled a committee to analyze administrative management in the government. In its report, this committee warned that a “headless ‘fourth branch’ of the Government” had arisen, one which violated the structural principles of the Constitution. The irony of FDR ‘s frantic attempt to rein in the non-democratic Frankenstein of vast bureaucratic “alphabet agencies,” many of which he had prevailed on Congress to create, could not have been lost on anyone. Suddenly, structural constitutional principles seemed to matter. One of Roosevelt’s “Brain Trust” advisors, Rexford Tugwell, later wrote that Humphrey’s Executor more than any other action by the judiciary was the catalyst for the President’s doomed plan to “pack” the Supreme Court after the 1936 election, an effort that, once again, seemed designed to weaken structural constitutional principles.
Roosevelt then pushed Congress for legislation to allow him very broad discretion to reorganize agencies and to centralize policy-making more in the White House. The independent agencies were to be placed within the cabinet departments to allow direct presidential control. The proposed bill eventually failed. In tones reminiscent of current political discourse, FDR was accused of pursuing a dictatorship. The President was impelled to declare that, in fact, he had no dictatorial inclinations or ambitions.
However, Congress eventually adopted less sweeping legislation to allow the President to reorganize the ballooning federal bureaucracy. Congress recognized how the role of the federal government in people’s lives was changing dramatically through this intrusive regulatory state. That change, its political manifestations, and the reactions against it are still with us, indeed even more so. That, in turn, raises issues of a constitutional and political magnitude that go well beyond the superficially narrow disputes in Humphrey’s Executor and the recent Slaughter holding. First, through the “unitary executive” concept, it raises fundamental questions about the essence of executive power and the separation of powers between the President and Congress. Second, it challenges the very constitutional basis of the administrative state and its entrenched and unelected bureaucracy, the “deep state,” as it has been called frequently.
These matters are complex and extend far beyond what can be addressed in a relatively brief examination. I taught the constitutional law and political implications of separation of powers and the administrative state for many years, well before it became more popular to do so once President Trump arrived on the scene, and my students can attest to the difficulty of wrestling with the many facets of these topics.
The next post will begin to address the constitutional origins of the dispute over the President’s power to fire federal officials.
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