In weakening checks on executive power, the Roberts Court overlooks the wisdom of its predecessors.
The majority opinion in Trump v. Slaughter defends a dangerous holding with a dreadful opinion. Writing for the majority, Chief Justice John G. Roberts, Jr., pays no serious attention to constitutional text. He mangles history, both of the American founding and of the 19th century. He cherry-picks evidence, minimizes ambiguity and conflict, and assigns events too much or too little weight depending on whether they support the majority’s foregone conclusion. His treatment of precedent, and thus his excuse for bypassing stare decisis, is grossly misleading. The opinion blithely assures us that Slaughter is not intended to “determine the fate of officials not before” the Court, including the judges of the Article I Tax Court and Court of Federal Claims. Yet the opinion rests on a wooden separation of powers formalism, including as expansive a definition of “executive power” as one could imagine: “When an agency ‘executes’ a congressional mandate against private parties, it exercises executive power—no ifs, ands, or quasis about it.”
If that is what “executive power” means and all “executive power” must be “controlled by the Chief Executive, in whom such power is vested,” then the prospects for independent judgment in Article I courts looks dim. Such was the analysis Chief Justice William Howard Taft proffered among his dicta in Myers v. United States, the 1926 precedent on which Slaughter relies. Even if the President could not legally command the result in a particular case, Chief Justice Taft wrote that he “may consider the decision after its rendition as a reason for removing the officer, on the ground that the discretion regularly entrusted to that officer by statute has not been, on the whole, intelligently or wisely exercised.”
As categorical as Slaughter sounds, the Court complicated matters in Trump v. Cook, the Court’s companion exercise in faux-historical legerdemain. Technically, Cookposed only the question whether the President was entitled to stay a lower court order keeping Lisa Cook, a member of the Board of Governors of the Federal Reserve System, in office while litigation proceeded over whether President Donald J. Trump properly removed her for “cause,” the statutory standard. Yet the majority clearly implied—as Justice Brett Kavanaugh’s concurrence said straight out—that the Court approves a “longstanding historical practice and understanding that the Federal Reserve is an independent agency whose Governors enjoy for-cause removal protection consistent with Article II of the Constitution.” Unfortunately, Justice Clarence Thomas’s dissent eviscerates that historical account. The Federal Reserve was not designed to be a bank in the tradition of the First and Second Banks of the United States but rather as an independent regulatory body, much like the Interstate Commerce Commission.
Synthesizing Slaughter and Cook, the rule now seems to be that “all” executive power must be controlled by the President unless the U.S. Congress invaded that power early enough for the Court to be satisfied that the usurpation is ratified by history. Unfortunately, the Court was simply dismissive in Slaughter regarding evidence of a more general understanding in the early Congresses that agencies could legitimately be set up to render decisions independent of presidential control. One is left with the impression that the Court now identifies a “historical understanding” with constitutional legitimating force just as Justice Potter Stewart once identified pornography: The conservative justices know it when they see it.
But for all the Slaughter majority’s historical sloppiness and jurisprudential misdirection, the opinion’s two gravest sins are its obliviousness to institutional consequence and encouragement of lower courts and executive branch lawyers to flout the law. Ironically, the opinion that sketches the dire practical implications of Slaughter most starkly is the concurrence by Justice Neil Gorsuch. The Court, he points out, has diminished the independence of independent agencies but not their substantive powers. Congress has given agencies “tremendous sway over the Nation’s affairs,” but often “with hardly any statutory guidance” to limit their policy making. After Slaughter, “the President can effectively exercise all those powers too.” Indeed, he adds:
The whole of the President’s authority also may be greater than the sum of its parts. It would be one thing if today’s decision afforded the White House more control over the airwaves. Or financial markets. Or energy. But Presidents now will enjoy waxing authority over all those areas and more. A business out of favor with the party in control of the White House might be able to stave off an FCC investigation. But can it survive a subsequent FTC rule declaring unlawful one of its longstanding trade practices? What about an in-house adjudication by OSHA? Or a prosecution for a new crime the SEC announces? Not to mention what these now-coordinated powers could do to disfavored individuals who lack the resources needed to fend off such attacks.
Given his libertarian leanings, Justice Gorsuch is most alert to how a corrupt or retributive President might use executive power to punish firms out of favor. He might have added, however, that a President can also use his newfound power to hobble agencies. As I have explained elsewhere, a President can eliminate an agency’s bipartisan makeup by simply firing minority commissioners, as President Trump did with the FTC. For agencies that can act only with a statutory quorum, a President can kneecap the agency by reducing its membership below quorum level. Or, as President Trump has actually done for the U.S. Election Assistance Commission, a President can paralyze an agency by firing any of its leaders who decline to resign. It is lamentable that a modern-day Court, confronting a document that obligates the President to “take care that the laws be faithfully executed,” would, for all practical purposes, legitimate presidential authority to undermine law execution altogether.
The majority opinion also effectively invites both lower courts and, by implication, executive branch lawyers to flout the law where inconsistent with the jurisprudential vibes of the moment. It is bad enough that the majority pretends that Humphrey’s Executor v. United States, the unanimous precedent it overrules, is the source of judicial “indeterminacy and unpredictability,” when the cause of that “indeterminacy and unpredictability” is the Roberts Court’s determination since 2010 to hack Humphrey’s Executor limb from limb. The Court scoffs that predecessor majorities applied Humphrey’s Executor only once since 1935, but that fact testifies not to the precedent’s insignificance but to the ease with which its clear import has been understood for the last ninety-plus years.
What is worse is that the majority fails to acknowledge that its approach to separation of powers analysis is fundamentally different from the equally serious jurisprudence of an earlier Court. Humphrey’s Executor represents the determination of the 1935 justices to legitimate a sensible institutional check-and-balance against the threat of a too-authoritarian executive empowered by Congress to regulate a modern national economy of unprecedented scope. Its solution was embraced unanimously by nine justices whose legal philosophies spanned a spectrum no narrower than that of the Roberts Court today. Five of those justices had been on the Myers Court, including four in the majority of that case. To reach their conclusion, the justices embraced a conception under which presidential control simply did not need to operate in the same way over officials performing functions deemed “quasi-legislative” or “quasi-judicial.” As the scholars cited in the dissent of Justice Sonia Sotomayor have established:
Such usage echoed the observation by President James Madison that “even executive officers may ‘partak[e] strongly of the judicial character’ and that such officers raise distinct considerations when it comes to removal.” The Roberts Court’s unwillingness to confront seriously and on its own terms what Humphrey’s Executor managed to accomplish is an act of judicial hubris that will surely spawn imitators.
A perfect example of the mindset we are bound to see more of is an April 1, 2026, opinion from the Department of Justice’s Office of Legal Counsel (OLC) purporting to find the 1978 Presidential Records Act unconstitutional. That statute created protocols for the management of presidential records that essentially generalized from a system that Congress had established for preserving the records of President Richard M. Nixon in the wake of Watergate, the 1974 Presidential Recordings and Materials Preservation Act. The U.S. Supreme Court upheld the 1974 statute against a separation of powers challenge in a 1977 decision, Nixon v. Administrator of General Services. Congress, acting with the benefit of the Court’s analysis, built into the Presidential Records Act virtually all of the details of the 1974 Act that the Court had relied on in upholding its constitutionality. Nonetheless, Trump’s OLC felt free to ignore the force of the earlier opinion. Nixon v. GSA, OLC asserts, “reflects the ‘ancien régime’ of the Court’s ‘mid-twentieth century’ approach to separation of powers, not the more thoughtful approach appropriately required by subsequent developments in Supreme Court doctrine.” Surely, the “nouveau régime” of the Trump Justice Department will draw nothing but encouragement from the Roberts Court’s careless dismissal of its predecessors.
The occasions for OLC and judicial hubris will shortly multiply as there will now be many long-established practices called into question by Slaughter—practices that will challenge the Roberts Court’s capacity to turn its jumbled understanding of Congress’s capacity to regulate the executive into a coherent jurisprudence. In the meantime, Americans will be left to ponder Chief Justice Roberts’s assertion that the one-person rule valorized by Slaughter somehow vindicates the “reliance interests of the American people … in the preservation of our constitutionally promised liberties.” The majority has done the opposite, and we are only beginning to witness its implications.
Peter M. Shaneis a distinguished scholar in residence and an adjunct professor of law at theNew York University School of Lawand the Jacob E. Davis and Jacob E. Davis II Chair in Law Emeritus atThe Ohio State University Moritz College of Law.
This essay is part of a series titled, “The Supreme Court’s 2025-2026 Regulatory Term.”
Tagged: Executive Power, Independent Agencies, regulatory independence, Supreme Court, Trump v. Slaughter, U.S. Supreme Court
