{"id":9507,"date":"2026-01-31T08:00:00","date_gmt":"2026-01-31T07:00:00","guid":{"rendered":"https:\/\/eulawenforcement.com\/?p=9507"},"modified":"2026-02-24T14:11:55","modified_gmt":"2026-02-24T13:11:55","slug":"more-power-to-the-president-the-u-s-supreme-court-is-poised-to-restrict-congress-power-to-create-independent-agencies","status":"publish","type":"post","link":"https:\/\/eulawenforcement.com\/?p=9507","title":{"rendered":"More Power to the President?\u00a0 The U.S. Supreme Court is Poised to Restrict Congress\u2019 Power to Create Independent Agencies"},"content":{"rendered":"\n

Since 1887, (and arguably before that<\/a>), 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\u2019s expense, at a time when many think that office has already become too powerful.<\/p>\n\n\n\n\n\n\n\n

The first modern independent agency in the U.S. was the Interstate Commerce Commission<\/a>, 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 \u201cinefficiency, neglect of duty, or malfeasance in office<\/a>.\u201d This became the model for other regulatory agencies in the early Twentieth Century, including the Federal Trade Commission<\/a> in 1914<\/a> and the Federal Radio Commission<\/a> (later to become the Federal Communications Commission<\/a>) in 1934<\/a>.<\/p>\n

Pursuant to the Appointments Clause<\/a> of the Constitution, these Commissioners (as with \u201cofficers\u201d 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 \u201cinferior officers\u201d (i.e., those who \u201cexercise significant authority pursuant to the laws of the United States\u201d but report to a principal officer) by the President alone, head of a department or a court of law.\u00a0<\/p>\n

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<\/a> that prohibited the President from firing the Secretary of War and several other cabinet members without the Senate\u2019s 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.\u00a0 It was not until 1926 that a challenge to a similar law enacted 50 years earlier\u2014this time applying to postmasters\u2014was 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<\/em><\/a>, in an opinion by Chief Justice (and former President) William Howard Taft, the Court ruled that it was a violation of the Constitution\u2019s 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\u2019s 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 \u201ctake care<\/a> that the laws are faithfully executed.\u201d\u00a0 Justice Lewis Brandeis wrote a strong dissent emphasizing Congress\u2019s power to create and structure agencies under its powers to regulate interstate commerce and to enact \u201call laws necessary and proper<\/a> for carrying into execution\u201d its enumerated Article I powers. Taft\u2019s opinion in Myers<\/em> has been extolled in recent decades by conservative legal scholars as the best defense of the \u201cunitary executive theory<\/a>,\u201d which, in its most muscular form, contends that by virtue of Article II\u2019s vesting<\/a> and \u201ctake care\u201d clauses, the U.S. President holds sole, complete authority over the entire executive branch.<\/p>\n

However, a mere nine years later, the Supreme Court unanimously (with four justices from the Myers<\/em> majority still serving), in Humphrey\u2019s Executor v. United States<\/em><\/a>, found that decision to be no barrier from upholding the constitutionality of the Federal Trade Commission Act\u2019s provision that the five Commissioners were to be appointed for seven-year terms and could not be removed by the President except for \u201cinefficiency, neglect of duty, or malfeasance in office.\u201d President Roosevelt had removed Commissioner Humphrey without giving any reason and his heirs sued for back pay.\u00a0 The Supreme Court distinguished Myers<\/em>, saying that unlike the postmasters in that case, the FTC Commissioners did not just perform purely executive functions, they also performed \u201cquasi-legislative\u201d and \u201cquasi judicial\u201d functions\u2014and that \u201cthe 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.\u201d<\/p>\n

Humphrey\u2019s Executor<\/em> 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<\/em><\/a>, 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\u2019s<\/em>, 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<\/em><\/a>.<\/p>\n

But this apparently settled jurisprudence became unsettled with the arrival of the conservative majority on the current Supreme Court.\u00a0 The Court began to chip away at Humphrey\u2019s<\/em> 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<\/em><\/a>.\u00a0 And then in two cases decided in 2020<\/a> and 2021<\/a> the Court held that Congress could not create an independent agency with a single agency head, distinguishing Humphrey\u2019s<\/em> in all three cases.<\/p>\n

Then came President Trump\u2019s second term, in which his Department of Justice declared<\/a> 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.\u00a0 He also fired<\/a> a Democratic member of the Federal Reserve Board, Lisa Cook, \u201cfor cause\u201d\u2014alleging she had committed mortgage fraud.<\/p>\n

After lower courts blocked most of these firings, citing Humphreys<\/em>, 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\u2014one involving the firing of Federal Trade Commissioner Rebecca Slaughter<\/a>, and the other involving Lisa Cook<\/a>.\u00a0 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<\/a> of the Federal Reserve Board due to its monetary policy role), things look rather bleak for Commissioner Slaughter.<\/p>\n

Despite numerous amicus curiae (friend of the court) briefs filed that have defended independent agencies on historical<\/a>, constitutional<\/a>, doctrinal<\/a>, and practical<\/a> grounds, it appears that a majority of the Court believes that either Humphrey\u2019s<\/em> was wrongly decided or that its rationale does not properly apply to the modern FTC or most other modern boards and commissions.\u00a0 It is true that the modern FTC has greater powers than its 1935 version. But as Professor Peter Shane<\/a> has pointed out, \u201cWhat 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\u2019s enactment in 1946 of the Administrative Procedure Act<\/a> (APA)[.]\u201d<\/p>\n

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<\/a> and special \u201cArticle I\u201d courts such as the Tax Court whose judges also have terms and for-cause protection from removal.<\/p>\n

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\u2019s party and its leadership has not signaled any discomfort with them.<\/p>\n

The upshot of a Court overruling of Humphrey\u2019s<\/em> 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\u2019s 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, it could give rise to \u201cpay for play<\/a>\u201d and other forms of corruption.<\/p>\n

These cases are bigger than the fate of the fired commissioners.\u00a0 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\u2014even those set up to be outside his complete control.<\/p>\n","protected":false},"excerpt":{"rendered":"

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 … Continue reading “More Power to the President?\u00a0 The U.S. Supreme Court is Poised to Restrict Congress\u2019 Power to Create Independent Agencies”<\/span><\/a><\/p>\n","protected":false},"author":310,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-9507","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"post_mailing_queue_ids":[],"_links":{"self":[{"href":"https:\/\/eulawenforcement.com\/index.php?rest_route=\/wp\/v2\/posts\/9507","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/eulawenforcement.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/eulawenforcement.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/eulawenforcement.com\/index.php?rest_route=\/wp\/v2\/users\/310"}],"replies":[{"embeddable":true,"href":"https:\/\/eulawenforcement.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=9507"}],"version-history":[{"count":3,"href":"https:\/\/eulawenforcement.com\/index.php?rest_route=\/wp\/v2\/posts\/9507\/revisions"}],"predecessor-version":[{"id":9512,"href":"https:\/\/eulawenforcement.com\/index.php?rest_route=\/wp\/v2\/posts\/9507\/revisions\/9512"}],"wp:attachment":[{"href":"https:\/\/eulawenforcement.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=9507"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/eulawenforcement.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=9507"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/eulawenforcement.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=9507"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}