Since 1887, (and arguably before that), the United States Congress has created regulatory agencies with a certain degree of independence from the President. The Supreme Court unanimously upheld that model as constitutional in 1935 and again in 1958, but the current Court began to chip away at it in the last two decades. The Trump Administration has now declined to defend independent agencies and the President has fired members appointed by Democratic Presidents. Now the issue is back at the Court and its conservative majority appears to be ready to overrule its precedents and declare many or most independent agencies unconstitutional. This would transfer more power to the Presidency, at Congress’s expense, at a time when many think that office has already become too powerful.
The first modern independent agency in the U.S. was the Interstate Commerce Commission, established in 1887 to regulate the then-crazy-quilt system of railroads crisscrossing the country. To ensure the regulators would not only have expertise but would also be somewhat insulated from politics, Congress originally created a five-member Commission with six-year terms and provided that they could be removed for “inefficiency, neglect of duty, or malfeasance in office.” This became the model for other regulatory agencies in the early Twentieth Century, including the Federal Trade Commission in 1914 and the Federal Radio Commission (later to become the Federal Communications Commission) in 1934.
Pursuant to the Appointments Clause of the Constitution, these Commissioners (as with “officers” serving as heads of other agencies in the Executive Branch) must be nominated by the President and confirmed by the Senate. That Clause also allows Congress to permit the appointment of “inferior officers” (i.e., those who “exercise significant authority pursuant to the laws of the United States” but report to a principal officer) by the President alone, head of a department or a court of law.
The Constitution is silent about removal of officers (other than impeachment). But during the last third of the Nineteenth Century, Congress began to enact legislation allowing the Senate to have a role in the removal of executive officers. For example, after President Lincoln was assassinated, the Congress, controlled by his party, did not trust his successor, Andrew Johnson, so in 1867, it passed a law that prohibited the President from firing the Secretary of War and several other cabinet members without the Senate’s consent. When Johnson did fire the Secretary, the House of Representatives impeached him, but because he was acquitted (by one vote) in the Senate, the law was never challenged in court. It was not until 1926 that a challenge to a similar law enacted 50 years earlier—this time applying to postmasters—was heard by the Supreme Court. President Wilson fired a postmaster without the consent of the Senate that the law had required, so the postmaster sued. In Myers v. United States, in an opinion by Chief Justice (and former President) William Howard Taft, the Court ruled that it was a violation of the Constitution’s separation of powers doctrine for the Senate to play a role in removal of executive officers. Although the holding in this case was relatively narrow, Taft’s opinion was a full-throated defense of the need for the President to have the firing power so that he could properly exercise his constitutional duty under Article II to “take care that the laws are faithfully executed.” Justice Lewis Brandeis wrote a strong dissent emphasizing Congress’s power to create and structure agencies under its powers to regulate interstate commerce and to enact “all laws necessary and proper for carrying into execution” its enumerated Article I powers. Taft’s opinion in Myers has been extolled in recent decades by conservative legal scholars as the best defense of the “unitary executive theory,” which, in its most muscular form, contends that by virtue of Article II’s vesting and “take care” clauses, the U.S. President holds sole, complete authority over the entire executive branch.
However, a mere nine years later, the Supreme Court unanimously (with four justices from the Myers majority still serving), in Humphrey’s Executor v. United States, found that decision to be no barrier from upholding the constitutionality of the Federal Trade Commission Act’s provision that the five Commissioners were to be appointed for seven-year terms and could not be removed by the President except for “inefficiency, neglect of duty, or malfeasance in office.” President Roosevelt had removed Commissioner Humphrey without giving any reason and his heirs sued for back pay. The Supreme Court distinguished Myers, saying that unlike the postmasters in that case, the FTC Commissioners did not just perform purely executive functions, they also performed “quasi-legislative” and “quasi judicial” functions—and that “the authority of Congress in creating [such] agencies], to require them to act in discharge of their duties independently of executive control cannot be well doubted.”
Humphrey’s Executor removed any doubt that Congress could create independent agencies, and it created many of them in the ensuing decades. In 1958, the Supreme Court in Wiener v. United States, addressed the issue again in the context of the removal of a member of the War Claims Tribunal. The statute was silent on the subject of for-cause removal protection of its members, but the Court, citing Humphrey’s, unanimously inferred that Congress intended such protections for the members of the purely adjudicatory body and invalidated the dismissal. In 1988, the Court also upheld statutory removal protections given to special prosecutors (deemed to be “inferior officers”) in Morrison v. Olson.
But this apparently settled jurisprudence became unsettled with the arrival of the conservative majority on the current Supreme Court. The Court began to chip away at Humphrey’s when a 5-4 majority ruled that Congress could not create two-layers of for-cause removal protection from the President in the 2010 case of Free Enterprise Fund v. Public Company Accounting Oversight Board. And then in two cases decided in 2020 and 2021 the Court held that Congress could not create an independent agency with a single agency head, distinguishing Humphrey’s in all three cases.
Then came President Trump’s second term, in which his Department of Justice declared that it would no longer defend the constitutionality of independent agencies (other than the Federal Reserve Board) and he began removing numerous holdover members of various boards and commissions. He also fired a Democratic member of the Federal Reserve Board, Lisa Cook, “for cause”—alleging she had committed mortgage fraud.
After lower courts blocked most of these firings, citing Humphreys, the Supreme Court granted stay requests by the Trump Administrations, allowing all but the Cook firing to proceed while the litigation went forward. Two cases have now reached the Court for full consideration—one involving the firing of Federal Trade Commissioner Rebecca Slaughter, and the other involving Lisa Cook. The Court has heard oral argument in both of them now, and while there is some hope that the Cook firing will be overturned (either for procedural shortcomings or based on a historical carve-out of the Federal Reserve Board due to its monetary policy role), things look rather bleak for Commissioner Slaughter.
Despite numerous amicus curiae (friend of the court) briefs filed that have defended independent agencies on historical, constitutional, doctrinal, and practical grounds, it appears that a majority of the Court believes that either Humphrey’s was wrongly decided or that its rationale does not properly apply to the modern FTC or most other modern boards and commissions. It is true that the modern FTC has greater powers than its 1935 version. But as Professor Peter Shane has pointed out, “What this argument ignores is the simultaneous evolution of American administrative law generally, under which the FTC and its sister agencies in 2025 have far greater legal and democratic accountability than they did in the 1930s. The most pertinent development was Congress’s enactment in 1946 of the Administrative Procedure Act (APA)[.]”
It is possible that the Court may carve out other exceptions from such a ruling beyond the Federal Reserve Board, such as the Federal Election Commission, or primarily adjudicative agencies and special “Article I” courts such as the Tax Court whose judges also have terms and for-cause protection from removal.
One might think that Congress, which created these agencies and have traditionally treated them as reporting at least as much to them as the President, would be appalled at this turn of events. But the current Congress is controlled by the President’s party and its leadership has not signaled any discomfort with them.
The upshot of a Court overruling of Humphrey’s would likely mean that these agencies would continue to operate, but the members would now serve at the pleasure of the President, and the terms of office, conditions on appointment, and other aspects of their independence from the White House would disappear. For some agencies this may not cause the skies to fall, but it is discomfiting to anticipate the President’s complete control of the Federal Communications Commission or of the securities, banking, and nuclear energy regulators. Not only does that risk consolidating undue power in one man (think of Putin’s control over all Russian media outlets), it could give rise to “pay for play” and other forms of corruption.
These cases are bigger than the fate of the fired commissioners. They involve the right of Congress to design the structure of the government agencies they create (through laws signed by Presidents), the need for expertise and the exercise of independent judgment in some areas of regulation, and the need for the judiciary to recognize the problems that can be created when a norm-busting President is given increased control of everything every agency does—even those set up to be outside his complete control.
