A President Unbound: Trump v. Slaughter and the New Unitary Executive

‍In a stunning expansion of presidential powers, the Supreme Court in Trump v. Slaughter overruled a ninety-year-old precedent and held that Congress cannot limit the President’s power to remove heads of federal agencies. This is a major lessening of checks and balances and again shows the six conservative justices’ disregard for even long-standing precedents.

In this essay, I initially summarize Humphrey’s Executor, which was overruled in Trump v. Slaughter, and its progeny, before examining the consequences of its overruling in Slaughter, particularly as it relates to presidential power.

In 1935, the Court unanimously held in Humphrey’s Executor v. United States that Congress could prevent the President from firing commissioners on the Federal Trade Commission unless there was just cause for the firing. The Court explained that since Congress could create federal agencies to carry out its powers with some independence from the President, Congress should be able to limit removal of commissioners only “for inefficiency, neglect of duty, or malfeasance in office.” The Court distinguished its earlier ruling Myers v. United States, which held that Congress could not limit removal of a postmaster, and explained that the crucial question was whether it was an agency where independence from the president was desirable; then Congress could limit presidential removal to where there is good cause for firing.

The Supreme Court followed this principle in many subsequent cases. In Wiener v. United States (1958), the Court went further and held that even without a statutory limit on removal, the President could not remove executive officials where independence from the president is desirable. Wiener involved President Eisenhower firing a member of the War Claims Commission so he could have “personnel of [his] own selection.” Unlike the Federal Trade Commission Act in Humphrey’s Executor, the statute creating the War Claims Commission did not expressly limit the President’s removal power. However, the Court concluded that the functional need for independence of the War Claims Commission limited the president’s removal power. The Court explained that Congress’s intent was for the War Claims Commission to award claims based on merit rather than on political influence.

In Morrison v. Olson (1988), the Court, in a 7-1 decision, held that Congress could authorize the appointment of an independent counsel to investigate alleged wrongdoing by the President or high-level executive officials and could limit firing to where there was just cause. Chief Justice William Rehnquist, a staunch conservative, wrote the opinion for the Court and reasoned: “In Humphrey’s Executor, we found it ‘plain’ that the Constitution did not give the President ‘illimitable power of removal’ over the officers of independent agencies. Were the President to have the power to remove FTC Commissioners at will, the ‘coercive influence’ of the removal power would ‘threate[n] the independence of [the] commission.’”

But the Court in Trump v. Slaughter expressly overruled Humphrey’s Executor and effectively overruled cases like Weiner and Morrison. Trump v. Slaughter involved Rebecca Slaughter, coincidentally, like in Humphrey’s Executor, a Commissioner on the Federal Trade Commission. In 2018, the Senate unanimously confirmed Rebecca Slaughter, a Democrat nominated by President Trump, to serve a seven-year term as FTC Commissioner. In 2024, Slaughter was reappointed by President Biden and confirmed by the Senate for a second term. Upon taking office for his second term, President Trump fired Slaughter—and the heads of many other federal agencies—without any claim of cause. President Trump asserted he did not require cause because all executive power was vested in himself as the head of a “unitary executive,” despite this argument’s explicitly and overwhelming rejection in Morrison.

In a 6-3 decision, the Supreme Court ruled against Slaughter, overruled Humphrey’s Executor, and embraced the unitary executive theory. Chief Justice John Roberts, writing for the majority, argued that the original intent of the Constitution was to allow the President to remove all executive officials. From this perspective, the Court concluded that Humphrey’s Executor, and all the cases that applied it, were wrongly decided.

There are four reasons the Court’s decision is notable. First, the Court again overruled a longstanding precedent and gave little, if any, weight to stare decisis. As Justice Sonia Sotomayor wrote in her dissent, “[n]inety years of precedent and 140 years of consistent political practice should have been more than enough to resolve this case.”

Second, it is important that the Court adopted the “unitary executive theory.” This is a theory of presidential power developed by young lawyers in the Reagan administration, including John Roberts and Samuel Alito. When Alito went before the Senate Judiciary Committee for his confirmation hearings in January 2006, a primary ground for opposing his confirmation was his belief in this expansive view of presidential powers. In Morrison v. Olson, Chief Justice Rehnquist explicitly rejected this theory and wrote, “We have never held that the Constitution requires that the three branches of Government operate with absolute independence.”

But in Trump v. Slaughter, the Court embraced the unitary executive theory. In the first sentence of his majority opinion, Chief Justice Roberts declared that “250 years ago, the Framers decided to vest ‘[t]he executive Power’ in one person—’a President of the United States of America.’” The full implications of the unitary executive theory are unclear, but it will certainly mean greater unchecked power for the President.

Third, there is the underlying issue of the status of federal regulatory agencies. For decades, Congress has relied on Humphrey’s Executor to create a myriad of federal agencies—the Securities and Exchange Commission, Federal Communications Commission, and National Labor Relations Board, to name just a few—with commissioners who can be fired only for cause. This was to provide the commissioners some degree of independence from the President.

The Court, in Slaughter, concluded its opinion: “To ‘discharg[e] the duties of his trust,’ the President must have the assistance of officers he can trust. . . . Neither Congress nor the courts may saddle him with those with whom he cannot work. Subordinates who exercise the President’s power are subject to removal by him.” But this assumes that commissioners on the Federal Trade Commission and similar agencies are “exercising the President’s power.” To the contrary, Justice Sotomayor argued in dissent that they are exercising Congress’s authority under the Constitution. This was to prevent these “agencies becoming mere political instruments, which could be turned against political enemies with one hand and used to grant favors to allies with the other.”

Fourth, does Congress retain any power to limit presidential firing? Are protections from removal for non-Article III judges, such as magistrate, bankruptcy, or Tax Court judges unconstitutional? Are civil service protections from removal unconstitutional? Chief Justice Roberts’s opinion said that these remain open questions.

In Trump v. Cook, a case decided the same day as Slaughter, the Supreme Court upheld a preliminary injunction against President Trump’s firing of Lisa Cook, a Governor on the Federal Reserve Board. Cook was appointed to the Board of Governors in 2022, at first to complete only the final two years of an unexpired term. A year later, however, President Biden nominated Cook to a full 14-year term, and the Senate again voted to confirm her appointment. Cook’s term on the Federal Reserve is set to expire in 2038. As with the Federal Trade Commission, federal law allows the President to remove Governors only for “cause.” President Trump fired Cook, claiming that she had engaged in mortgage fraud. No court or agency has found that Cook did anything wrong.

In a 5-4 decision, with the majority opinion again written by Chief Justice Roberts, the Court ruled in favor of Cook. The Court stressed the unique role of the Federal Reserve Board, tracing its history back to the first Bank of the United States during the presidency of George Washington. President Trump even conceded that Congress could limit removal of governors on the Federal Reserve but argued instead that the President alone could determine whether there was cause for firing and that no court could review this determination. The Supreme Court rejected this argument and ruled on the narrow ground, that under the federal statute protection Governors of the Federal Reserve Board from firing, “Cook was entitled to notice and some opportunity to respond prior to her termination.” Thus, the Court does not decide, the question of whether the President could fire a Governor on the Federal Reserve Board if he had provided notice and opportunity.

It is difficult from Trump v. Cook to know where the lines will be drawn as when Congress can, and cannot, limit removal. I think federal bankruptcy and magistrate judges will be an easy question. Because they are “adjuncts” of the federal district courts and do not exercise executive power, the limits on their removal are likely to be constitutional even after Slaughter. It is harder to predict what the Court will say about administrative law judges within federal agencies. As for other federal statutes limiting firing, including civil service protections, the Court might employ a distinction between federal officers, inferior officers, and employees. Slaughter is about officers and the Court may not extend it beyond that.

The bottom line of these decisions was succinctly stated by Justice Sotomayor in her dissent in Trump v. Slaughter: “The result is a President who emerges with far greater power than ever before.” It is ironic for the Court to bless such authority in the same week the country celebrated the 250th anniversary of the Declaration of Independence—itself an objection to unchecked executive power.

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‍Copyright © 2026 Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley School of Law