The Supreme Court has raised new questions by rejecting historic understandings of agency authority.
In Trump v. Slaughter, the Supreme Court overruled Humphrey’s Executor v. United States to hold that the U.S. Constitution gives the President illimitable power to remove a member of the once-independent Federal Trade Commission (FTC) at will. The decision was 6-3, but focusing on that split obscures the Court’s unanimous embrace of the premise that administrative agencies, at least when performing core regulatory functions, exercise executive power and are part of the executive branch. The decision reflects the ascendance of a modern idea of “administrative” power far different from that which supplied the legal foundation for the New Deal administrative state and the 20th-century administrative law that kept agencies in check.
The rise of the administrative state was constitutionally problematic because it involved combining government functions—legislative, executive, and judicial—that the Constitution separates among the three branches. Over the early decades of the administrative state, through the development of various doctrines, the courts worked out a conceptual approach to addressing these problems. “Administrative” power came to be defined as predominantly legislative and judicial in character and, therefore, not a matter of executive power. “Quasi” was shorthand that distinguished between statutory function and constitutional power. That is, it indicated that when an agency makes policy, its action is superficially legislative but is not an exercise of the U.S. Congress’s legislative power; and when an agency determines private rights, its action is superficially judicial but is not an exercise of the courts’ judicial power.
In Humphrey’s Executor, the Supreme Court used—but did not create—this concept of “administrative” power to uphold Congress’s use of statutory for-cause removal protection to insulate the FTC’s legislative and judicial functions from presidential control. The provision at issue was just one component of a broader legal regime that sought to protect the separation of powers by ensuring that Congress retained primary control over legislative functions while courts retained primary control over judicial functions. As I have argued, the Administrative Procedure Act was based on this same conceptual foundation. The Act only regulates the agencies’ legislative and judicial functions, providing a framework for promoting fidelity to statutory mandates, ensuring due process in agency proceedings, and calibrating judicial review of agency action.
Slaughtermarks the culmination of a long, slow process of erosion of this older, foundational idea of administrative power. The decision includes three opinions—a majority opinion of six justices authored by Chief Justice John G. Roberts, Jr., a solo concurrence by Justice Neil Gorsuch, and a dissenting opinion of three justices authored by Justice Sonia Sotomayor. The concurrence and dissent identify many legal problems flowing from the majority’s decision. But neither defends the rationale of Humphrey’s Executor or the concept of administrative power that it reflected.
Writing for the majority, Chief Justice Roberts takes an all-or-nothing approach to classifying administrative power as executive power: “When an agency ‘executes’ a congressional mandate against private parties, it exercises executive power—no ifs, ands, or quasis about it.” In this formulation, all agency action necessarily entails the exercise of the President’s executive power. This includes rulemaking—that is, “the power to promulgate substantive rules that carry the force of law.” And it includes adjudication, both in the informal sense of when the FTC “investigates businesses to ensure they comply with statutes and rules” and in the formal sense of enforcement “through in-house adjudication.” The FTC, explains the Court, “may even place the onus on a private party to comply with its orders—on pain of monetary penalties—before the case reaches the courts.” Chief Justice Roberts explains that “this power, too, is executive,” as is “the discretionary power” to file civil suits on behalf of the federal government in Article III courts. Officers that exercise these authorities “exercise the President’s power, not their own, and thus must be responsible to him.”
Both the concurrence and the dissent accept the majority’s executive conception of administrative action. Justice Gorsuch begins his concurrence by declaring his agreement with the proposition that “the President must have the ability to remove principal officers who exercise executive power in his name.” Although Justice Sotomayor vigorously dissents from the Court’s removal holding, she implicitly accepts the idea that administrative power is executive power. For example, she describes agency action as involving “the exercise of executive power,” accepts that independent agencies were created “under the President” and within “the Executive Branch,” and refers to the members of independent agencies as “executive officers.”
This idea that administrative power is executive power seems obvious and intuitive today, but it is emphatically not the idea that animated the 20th-century settlement of constitutional concerns with administrative governance. Justice Gorsuch sees this problem clearly and identifies many of the constitutional questions that courts may need to revisit in the wake of Slaughter. Justice Sotomayor illuminates the extraordinary extent to which Congress has relied upon now-rejected understandings to construct the administrative state. Many of the statutory structures now in place will have to be justified anew—or jettisoned, with profound consequences for due process and the rule of law.
The conceptual revolution completed in Slaughterwill also reverberate throughout the statute books. Old issues will surface anew, and questions that once occurred to no one will have to be answered. Can the President directly exercise any statutory authority that Congress has given to any federal officer? If so, the last 250 years of arguing about removal seems truly pointless. Are qui tam actions—lawsuits filed by private citizens on behalf of the government—unconstitutional because they allow private citizens to wield the President’s executive power? Do the Administrative Procedure Act’s procedural provisions unconstitutionally infringe on executive discretion? Solutions to the renewed constitutional problems may also be found in new interpretations of old statutes. For example, perhaps agencies cannot simply impose civil penalties without process in Article III federal courts. And perhaps courts will less readily read statutes to convey upon agencies the authority to make legislative rules—that is, substantive rules that have the force of law.
Answering all of these questions—constitutional and statutory alike—will require clarification about the nature and extent of the President’s executive power. Because 20th-century administrative law focused so much on understanding “legislative” and “judicial” functions, “executive” power has been undertheorized in the domestic administrative context. But the outcome of this new legal necessity is uncertain. It could be that, as Justice Gorsuch suggests, the President’s power emerges stronger but more narrowly confined. But it is also possible, as Justice Sotomayor fears, that the power of all three branches of the federal government will be delivered into the President’s hands.
Emily S. Bremeris a law professor at theUniversity of Notre Dame Law School.
This essay is part of a series titled, “The Supreme Court’s 2025-2026 Regulatory Term.”
Tagged: Executive Power, Humphrey’s Executor v. U.S., Supreme Court, Trump v. Slaughter, U.S. Supreme Court
