Justice Brett Kavanaugh used an interesting choice of phrase when describing the constitutional issues in Trump v. Slaughter, the vividly named case on the president’s ability to remove certain federal officials that Congress stipulated could only be fired for cause.
“How do you answer the accountability theme, which I think is the theme of the other side, is that independent agencies are not accountable to the people?” Kavanaugh asked Amit Agarwal, who argued on behalf of FTC Commissioner Rebecca Slaughter. “They’re not elected, as Congress and the president are, and are exercising massive power over individual liberty and billion-dollar industries, whether it’s the FCC or the FTC or whatever it might be.”
We’ll get to the merits of Kavanaugh’s point later. What really jumped out at me was how he phrased it. The court’s conservative justices speak often about protecting “liberty” or “individual liberty” when referring to the president’s removal power and Congress’s constrains on it. In their view, it is essential for individual liberty that the president is able to fire any top-level federal official for any reason, or even for none at all.
Kavanaugh articulated something a little different on Monday by adding “billion-dollar industries” there. As the oral arguments made clear, the Supreme Court is about to bless an unholy union between presidential corruption and corporate power under the premise that it is actually upholding constitutional principles.
The namesake of Monday’s case, Rebecca Slaughter, is a commissioner on the Federal Trade Commission. She does not appear to be a threat to anyone’s individual liberty. Ironically, Slaughter was originally nominated to serve on the FTC by Trump himself. The Senate confirmed her in 2018 to fill a vacancy by one of the commission’s Democratic seats, and then-President Joe Biden successfully renominated Slaughter to a full seven-year term in 2023.
Trump ordered her removal in March, along with another Democratic FTC appointee, without cause only two years into her second term. In response, Slaughter filed a federal lawsuit to challenge the legality of her dismissal. She argued that the Trump administration had violated the for-cause removal protections enacted by Congress for FTC commissioners when the agency was founded over a century ago.
Precedent is on Slaughter’s side. In the 1935 case Humphrey’s Executor v. United States, the Supreme Court upheld the for-cause removal protections for FTC commissioners. The justices acknowledged that presidents could generally remove top federal officials at will, but argued that this power was more limited in the FTC context because agencies like it also exercised “quasi-legislative” and “quasi-judicial” powers.
Congress has relied on that decision to structure much of the federal government over the past century. Under the Constitution, Congress has the power to regulate interstate commerce. To exercise these powers, lawmakers created a host of federal agencies over the years to enact regulations and enforce federal law. Some of these agencies, like the FDA and the EPA, are directly under the president’s control because he can fire the officials who lead them.
Other agencies are structured to be more independent. The Federal Trade Commission, the agency at issue in this case, enforces federal antitrust law and some consumer-protection laws, with a mandate to prevent fraudulent, anticompetitive, and deceptive business practices. To ensure that the FTC operated in the interests of good government, Congress placed it under the direction of a board of Senate-confirmed commissioners and insulated them from unjustified removal by the president.
This has generally been a good thing for the American people. Agencies like the FTC, the Securities and Exchange Commission, the National Lablor Relatione Board, and so on have existed for roughly a century now—a century where Americans enjoyed unprecedented growth in prosperity, quality of life, and individual liberty. This is not to say that these agencies were responsible for 20th century America’s success, of course. But they certainly didn’t seem to prevent or inhibit it.
The conservative legal movement—and, more importantly, the six justices it installed on the Supreme Court—takes a much different view. They favor the “unitary-executive theory,” whereby presidents should be able to wield absolute control over every aspect of the executive branch. Then-Judge Brett Kavanaugh wrote in an opinion in PHH Corp v. CFPB in 2018 while serving on the D.C. Circuit Court of Appeals where he aptly summarized the conservative view.
“The independent agencies collectively constitute, in effect, a headless fourth branch of the U.S. government,” Kavanaugh wrote. “They hold enormous power over the economic and social life of the United States. Because of their massive power and the absence of presidential supervision and direction, independent agencies pose a significant threat to individual liberty and to the constitutional system of separation of powers and checks and balances.”
Let us get the obvious point out of the way: It is virtually certain that Slaughter will lose. I do not like to predict outcomes of Supreme Court cases in advance, but it would be misleading to suggest anything else here. Set aside for a moment the conservative justices’ writings over the years denouncing Humphrey’s Executor, or the course of Monday’s oral arguments, or even the general ideological vibes of the justices themselves.
We know Humphrey’s Executor is almost certainly doomed because the Supreme Court already effectively overturned it via the shadow docket. In case after case, the justices blithely overruled the lower courts to allow Trump to fire protected federal officials without cause. The conservative justices’ unsigned orders indicated that, in their view, it would be worse to allow a dismissed federal official to stay on the job than it would be for the president to obey black-letter federal law and century-old Supreme Court precedent pending appeal.
Slaughter herself remained in office by order of the lower courts for most of this year until the Supreme Court allowed her to be temporarily removed during litigation in September. The sole exception to this practice was Lisa Cook, a member of the Federal Reserve Board of Governors whom Trump tried to remove in August. The Supreme Court allowed her to keep her job pending a ruling in her case, which is set for oral argument in January.
Monday’s oral arguments only confirmed what was already obvious. None of the court’s six conservatives seemed interested in saving Humphrey’s Executor, or even in considering a narrower ruling in Trump’s favor that focused on changes to the FTC’s powers since 1935. Chief Justice John Roberts even echoed Solicitor General D. John Sauer’s phrasing by opining that Humphrey’s Executor is “just a dried husk” at this point, which is not what justices typically say when they approve of something.
The only question now is how much damage the Supreme Court will do along the way. These agencies—the FTC, the SEC, the NLRB, and so on—received immense power from Congress when they were established under the theory that it would be exercised independently of the president’s control. So too were other agencies and boards that might be swept up by the court’s ruling.
Some of the court’s liberal justices raised concerns that non-Article III courts like the U.S. Tax Court could be compromised, for example, as could other laws that insulate the overwhelming majority of federal workers from arbitrary dismissal. “You’re putting at risk the civil service,” Justice Sonia Sotomayor told Sauer. “I don’t see how your logic could be limited.” Sauer could only reply that the Justice Deepartment wasn’t challenging those restrictions “in this case.”
Justice Samuel Alito jumped in at one point to throw Sauer a life preserver of sorts. What if the Supreme Court simply suggested in its ruling in this case that it did not necessarily apply to those other situations? “What would you propose that we say so as to reserve a decision on those agencies that may not come before us in the near future or perhaps at any time in the future?” he asked Sauer.
That drew an incredulous response from Justice Elena Kagan in a later exchange. “Logic has consequences,” she explained to her colleagues. “Once you use a particular kind of argument to justify one thing, you can’t turn your back on that kind of argument if it also justifies another thing in the exact same way. And so, you know, putting a footnote in an opinion saying we don’t decide X, Y, and Z because it’s not before us doesn’t do much good if the entire logic of the opinion drives you there.”
Slaughter’s lawyers struggled to present an argument that would be persuasive to the justices, in part because it was a likely doomed mission from the start and in part because they struggled to articulate the underlying principles of the status quo. Only at times did they manage to defend Congress’s prerogatives from a predatory executive branch.
“It is absolutely implausible to say for the entirety of American history, presidents of the United States have been complicit in giving up a vital executive power that is, according to [the government], indispensable to their constitutional duty,” Agarwal noted. Instead, he explained, “the better answer by far is to say that presidents have understood and appreciated that vital interests of the American people can be served by having constraints on the exercise of power,” which he described as a “really important part of our political tradition.”
That tradition, of course, is now in dire jeopardy. If and when Trump prevails at some point next year, the court’s ruling will mark the greatest expansion of presidential power since the New Deal. And the Supreme Court will be handing over that power not just to any president, but to one who has almost exclusively used his existing authority for a wide range of corrupt and self-serving purposes.
This does not appear to have deterred the justices. If anything, it may have encouraged them. Sauer expressed concern at one point about the “real-world consequences” of agencies “exercising enormous governmental authority with a great deal of control over individuals and small and large businesses and so forth” if they “ultimately do not answer to the president.” It should be the president, Sauer argued, who gets to wield the FTC’s power over mergers and antitrust, or the SEC’s control over financial regulations, or the NLRB’s power to resolve labor-management disputes.
That will be an enormous boon to the companies that have cozied up to Trump, whether by donating millions of dollars to his campaign, or by doing his bidding on conservative culture-war projects, or by funding an illegal White House ballroom, or so on. It will also be helpful to any business that thrives in a weaker regulatory environment by grifting Americans outright, or by exploiting the non-enforcement of labor laws, consumer-protection laws, and securities laws. Scammers and predators and white collar criminals of all varities shall inevitably rejoice when this decision is handed down.
All of that would be dangerous for Americans’ lives, liberties, and pursuits of happiness, one would think. Perhaps that is why Congress structured these agencies to keep their distance from more easily corruptible officials in the executive and legislative branches. Unfortunately, Kavanaugh and his colleagues have a different conception of “liberty” in mind: one where “billion-dollar industries” are at liberty to conspire with a corrupt president to exploit and abuse the rest of us. As a result, Trump v. Slaughter is poised to be a landmark step on this country’s turn away from democratic governance and good government in favor of oligarchy and despotism.
