The End of the Independent Agency: Supreme Court Overrules Humphrey's Executor

Today the Supreme Court issued one of the most consequential administrative law decisions in nearly a century. In Trump v. Slaughter, a 6–3 majority overruled Humphrey’s Executor v. United States, the 1935 decision that allowed Congress to shield certain independent agency commissioners from at-will presidential removal. Chief Justice John Roberts, writing for the Court, held that for-cause removal protections for the heads of agencies exercising executive power violate the Constitution’s separation of powers. The decision gives the President broad authority to remove commissioners serving on agencies that exercise executive power.

The case arose when President Donald Trump fired the two Democratic members of the Federal Trade Commission (FTC), Rebecca Slaughter and Alvaro Bedoya, citing policy disagreements rather than the statutory grounds of inefficiency, neglect of duty, or malfeasance. Specifically, he told them their service was “inconsistent with my Administration’s priorities” and that he was acting “pursuant to my authority under Article II of the Constitution.” Commissioner Slaughter sued to be reinstated. The district court, applying Humphrey’s Executor, ordered her restoration. The Supreme Court stayed that order, granted certiorari before judgment, and reversed.

The majority’s reasoning rests on the basic premise that the Constitution vests all executive power in a single President who must “take Care that the Laws be faithfully executed.” Because the President cannot act alone, he relies on officers to execute the laws — but those officers are his deputies, not his equals. They must be removable by the President to preserve constitutional accountability. The “Decision of 1789,” in which the First Congress confirmed this principle under the leadership of Virginia Rep. James Madison, and Myers v. United States, both held the same: The power to remove executive officers belongs to the President as an inherent incident of executive power.

Humphrey’s Executor tried to carve out an exception by labeling FTC functions “quasi-legislative” and “quasi-judicial” — not truly executive. Over time, Congress has set up additional agencies with a structure similar to the FTC: multimember commissions, requirements that the President appoint Commissioners from both parties, putatively quasi-legislative and quasi-judicial responsibilities, and prohibitions on the President’s ability to remove such Commissioners without cause. These “independent agencies” touch all areas of federal regulation and include the Consumer Product Safety Commission, the Nuclear Regulatory Commission, the Federal Energy Regulatory Commission, the Federal Labor Relations Authority, the Federal Election Commission, and the Surface Transportation Board, among others.

The Court today found that the “quasi-legislative” and “quasi-judicial” labels were always a legal fiction. The FTC’s powers had always been executive in character, and the executive nature of those powers had only increased over time. The Court noted that the FTC promulgates rules carrying the force of law. The FTC investigates businesses for compliance with statutes and rules and then enforces those statutes and rules through in-house adjudications, including orders that can expose private parties to monetary penalties. And the FTC litigates on behalf of the United States by bringing civil suits in federal court, where it can seek injunctions, civil penalties, and other remedies. By premising its decision on these qualities, the Court has now said that these are all now indisputably “executive” powers, and the officers holding them can be removed by the president for any reason.

The ruling does not affect the underlying statutory authority of any agency: The laws these agencies administer remain on the books, and their powers to regulate, investigate, enforce, and adjudicate are unchanged. What changes is who controls the people exercising those powers. Commissioners will now entirely turn over with administrations, which means the priorities, pace, and intensity of federal enforcement will shift in closer alignment with whoever holds the White House.

The Court leaves one door open — where those agencies “exercise no part of the executive power.” While the Supreme Court did not say much about the dimensions of this exception, it stands to reason that Congress retains the power to set conditions on presidential removal for agencies that are part of the legislative branch such as the Government Accountability Office, and likely does so for certain oversight boards that have no power beyond the not-necessarily-executive power to investigate and issue reports, such as the U.S. Commission on Civil Rights or the Chemical Safety and Hazard Investigation Board. The Supreme Court also noted that it was not reaching the question of tenure protections for the judges of non–Article III courts such as the Tax Court and the Court of Federal Claims. Finally, today’s companion case, Trump v. Cook, appears to recognize an exception — “a special arrangement sanctioned by history” — for central banking that serves to insulate the Federal Reserve Board of Governors from presidential removal.