Have you ever watched a president try to drain the swamp and wondered why it feels like he’s swinging at ghosts? Some bureaucrats seem untouchable no matter who sits in the Oval Office. That frustration just played out in dramatic fashion at the Supreme Court this week, and from the sound of things, a major shift in who really runs Washington might be coming sooner than anyone expected.
The case itself sounds dry on paper — can the president fire a member of the Federal Trade Commission whenever he wants? But make no mistake: the stakes are enormous. We’re talking about whether hundreds, maybe thousands, of high-level government officials can continue operating with the kind of independence that has defined the modern administrative state for nearly a century.
A Ninety-Year-Old Precedent on Life Support
Let’s start with the elephant in the courtroom: Humphrey’s Executor. Back in 1935, in the middle of the New Deal frenzy, President Franklin Roosevelt tried to fire a Republican member of the old Federal Trade Commission. The Supreme Court unanimously slapped him down, creating this idea that certain agencies are “quasi-legislative” or “quasi-judicial” and therefore their leaders deserve protection from presidential meddling.
That decision has been the foundation for independent agencies ever since — think SEC, FCC, NLRB, and yes, the modern FTC. But here’s the thing that jumped out during oral arguments: pretty much everyone on the current Court seems to think the original Humphrey’s reasoning hasn’t aged well.
Chief Justice Roberts put it bluntly. He described the 1935 precedent as “a dried husk” after the Court’s 2020 decision in Seila Law, which struck down similar protections for the Consumer Financial Protection Bureau director. When even the Chief Justice is throwing shade like that, you know something big is brewing.
The Core Constitutional Question
At its heart, this case forces the justices to confront a fundamental question: who actually exercises executive power in our system? The Constitution vests that power in the President — all of it. There’s no asterisk saying “except for these agencies Congress really likes.”
The Trump administration’s argument is straightforward: if someone is exercising executive power (enforcing laws, bringing cases, issuing regulations with the force of law), they work for the President. Period. The President should be able to fire them when they refuse to implement his policies or pursue their own agenda.
The President needs to be able to remove executive officers who will not execute the laws as he interprets them. That’s not optional — that’s the very nature of executive power.
That’s the unitary executive theory in a nutshell, and five or six justices sounded pretty sympathetic to it during arguments.
Where the Justices Seemed to Land
Reading the tea leaves from oral arguments is always dangerous, but some patterns emerged pretty clearly.
Justice Thomas, as usual, went straight to first principles. He pressed hard on how far Congress could go in insulating executive officers from presidential control. Could they protect the Secretary of Defense? The Secretary of State? If not, why should some random agency head get more protection?
Justice Gorsuch seemed even more eager to pull up the old precedent by the roots. At one point he practically invited the administration to challenge not just removal restrictions, but the whole idea of Congress delegating legislative power to agencies in the first place. “Is the water warm?” he asked with what sounded like genuine enthusiasm.
- Justice Alito appeared solidly in the president’s corner
- Justice Kavanaugh pushed back against doomsday predictions while clearly leaning toward broader removal power
- Justice Barrett acknowledged the erosion of Humphrey’s Executor but expressed some caution about how far to go
- Even Chief Justice Roberts, while more measured, seemed fundamentally skeptical of the old precedent
The liberal justices — Sotomayor, Kagan, and Jackson — fought hard against expanding presidential authority. Justice Sotomayor repeatedly warned about “destroying” the structure of government that has existed for decades. Justice Kagan tried to draw lines based on multi-member commissions versus single directors, traditional agencies versus new ones.
But here’s what struck me: even their questions often felt more about damage control than preserving the status quo. They seemed to be negotiating the terms of surrender rather than mounting a full-throated defense of the old system.
The Seila Law Precedent That Changed Everything
To understand where we are, you have to understand where we’ve been. The 2020 Seila Law decision was supposed to be narrow — just about the CFPB’s unusual structure. But Chief Justice Roberts wrote some footnotes that have been quietly detonating ever since.
Most importantly, he noted that the Court’s original conclusion about the FTC not exercising executive power “has not withstood the test of time.” That’s judicial code for “we got that one wrong.”
The modern FTC does very much exercise executive power — it brings enforcement actions, seeks monetary penalties, issues rules with the force of law. It’s not some advisory body writing reports for Congress. It’s a law enforcement agency with massive power over American businesses.
Once you accept that reality, the original justification for protecting FTC commissioners collapses. They aren’t quasi-judicial officers standing apart from politics. They’re executive officers implementing (or refusing to implement) the president’s policies.
Why This Matters Beyond One Commissioner
Look, nobody outside of Washington particularly cares about Rebecca Slaughter staying or going at the FTC. What people should care about is the principle at stake.
Right now, we have this massive fourth branch of government — the administrative state — that often seems to answer to no one. Agency officials can pursue their own policy agendas for years, even decades, regardless of who voters put in the White House. They can slow-walk presidential initiatives, leak against them, or actively sabotage them from within.
That’s not democracy. That’s bureaucracy run amok.
In my view — and apparently the view of at least five justices — the Constitution has a solution to this problem. It’s called the President of the United States. When voters elect someone promising to change direction on regulation, antitrust enforcement, environmental policy, whatever — they should actually get that change.
The Sky Won’t Fall (Probably)
One of the most persistent arguments against expanding removal power is that it would destroy the independence of agencies we all rely on. Justice Kavanaugh pushed back hard on this during arguments, and I think he had the better of it.
Presidents have always had removal power over most executive officials. They just rarely use it, especially against multi-member commissions where the norm has been to respect terms and only remove for cause. But the existence of the power actually encourages cooperation and responsiveness.
Think about it this way: when was the last time the Federal Reserve had a major public battle with a president over monetary policy? They work out their differences privately because everyone understands the ultimate power dynamic. The same could be true across the government.
The sky will not fall. We’ve lived with presidential removal power over single directors, cabinet secretaries, and countless other officials. Extending that to commission heads would change norms, not destroy institutions.
What Might the Court Actually Do?
Here’s where it gets interesting. The Court has options ranging from narrow to earth-shattering:
- Rule very narrowly that the president can fire this particular FTC commissioner because the modern FTC clearly exercises executive power
- Hold that multi-member agencies with primarily executive functions don’t get removal protection
- Overrule Humphrey’s Executor entirely for all agencies that exercise executive power
- Go even further and limit Congress’s ability to create independent agencies at all
My sense from the arguments is they’ll probably land somewhere between options 2 and 3. The conservative justices seemed ready to significantly limit or overrule Humphrey’s, but some expressed hesitation about going full nuclear on the entire administrative state in one case.
Justice Barrett in particular seemed concerned about stability and precedent, even while acknowledging the old decision’s weakness. Justice Kavanaugh kept emphasizing that this wouldn’t invalidate agencies entirely — just change how their leadership can be removed.
The Democratic Accountability Argument
Perhaps the most powerful moment came when Justice Kavanaugh pressed the FTC commissioner’s lawyer on democratic accountability. These agencies exercise enormous power over the economy and individual liberty. Yet their leadership often serves terms longer than the president who appointed them, sometimes spanning multiple administrations of both parties.
When voters elect a president promising major change — whether it’s deregulation, more aggressive antitrust enforcement, or whatever else — should they have to wait years or decades for agencies to slowly turn the ship? Or should the person they actually elected have the tools to implement the agenda they were chosen to pursue?
That’s not about partisanship. That’s about basic democratic theory. The people we elect should actually govern.
Looking Ahead
Whatever the Court decides, the implications will be massive. We’re likely looking at a decision by June that could reshape the balance of power in Washington more dramatically than anything since the New Deal era.
Some agencies might keep their independence — the Federal Reserve got special mention during arguments as potentially different. But for most of the alphabet soup of regulatory agencies? The days of operating as mini-fiefdoms answerable to no one may be numbered.
Call me old-fashioned, but I tend to think the Constitution’s answer to “who watches the watchers?” isn’t “nobody.” It’s the person voters actually chose to run the executive branch. After ninety years, the Supreme Court seems ready to say the same thing.
The administrative state isn’t going anywhere. But who controls it? That question might finally get the answer the Constitution always intended.
