The Supreme Court's Dangerous Gamble: Undermining Independent Agencies and Our Constitutional Balance

The Case That Could Reshape American Governance

The Supreme Court stands on the brink of a decision that could fundamentally alter the balance of power in American government. During oral arguments on Monday, the Court’s conservative majority appeared ready to grant President Trump sweeping authority to fire leaders of independent regulatory agencies at will, potentially overturning the landmark 1935 precedent of Humphrey’s Executor v. United States. This case involves President Trump’s firing of Federal Trade Commission Commissioner Rebecca Kelly Slaughter, a Democratic appointee, despite federal law stating that commissioners can only be removed for “inefficiency, neglect of duty or malfeasance in office.”

The implications extend far beyond the FTC. A decision favoring the administration could jeopardize the independence of more than two dozen bipartisan commissions and boards that Congress intentionally created to operate outside direct presidential control. These agencies—including the Nuclear Regulatory Commission, Federal Communications Commission, Securities and Exchange Commission, and Consumer Product Safety Commission—were designed to make decisions based on expertise rather than political loyalty, protecting consumers, workers, and the environment from corporate abuses and ensuring regulatory stability across presidential administrations.

Historical Context and Constitutional Principles

The current legal framework protecting independent agencies dates back to the nation’s founding. As revealed in the arguments, the first Congress in 1790 created the Sinking Fund Commission—considered America’s first independent agency—with structural protections against presidential removal. Alexander Hamilton himself proposed this structure specifically to insulate commission members from political pressures. The commission included members like the vice president who could not be removed at will by the president, and Hamilton served alongside his political rival Thomas Jefferson.

This historical context matters profoundly. The Humphrey’s Executor precedent, which the Court now considers overturning, was decided unanimously in 1935 and held that President Franklin Roosevelt could not remove an FTC commissioner merely due to political differences. The Court reasoned that Congress could constrain the president’s removal power for officials serving on multimember boards exercising quasi-legislative and quasi-judicial functions rather than purely executive power.

For nearly 90 years, this precedent has formed the bedrock of the modern administrative state, allowing Congress to create agencies staffed by experts who can make decisions based on technical knowledge rather than political expediency. The alternative—subjecting every regulatory decision to presidential whim—threatens the very stability that allows businesses to plan and investors to commit capital with confidence.

The Stakes for American Democracy and Governance

What’s at stake in this case is nothing less than the structural integrity of American government. Justice Elena Kagan warned that granting presidents unfettered removal power would “put massive, uncontrolled, unchecked power in the hands of the president.” Justice Sonia Sotomayor told the administration’s lawyer that they were asking the Court “to destroy the structure of government” and take away from Congress “its ability to protect its idea that the government is better structured with some agencies that are independent.”

The practical consequences are staggering. Imagine a Nuclear Regulatory Commission where technical safety determinations could be overruled by presidential fiat. Consider a Federal Election Commission entirely controlled by whatever party holds the White House. Envision environmental protections, consumer safety standards, and workplace regulations changing with each administration rather than being based on scientific evidence and expert consensus.

This isn’t hypothetical. We’ve already seen President Trump fire multiple watchdogs and independent officials since returning to office. The Court has generally allowed these firings to take effect through temporary orders, but this case represents the first opportunity for a conclusive ruling on the underlying legal questions.

The Alarming Expansion of Presidential Power

The Trump administration’s position represents an extreme vision of presidential power that contradicts both historical practice and constitutional design. Solicitor General D. John Sauer argued that presidents should be able to fire leaders of independent agencies for “completely arbitrary reasons” and that the Humphrey’s Executor precedent was “an indefensible outlier” that must be overruled. He claimed that “the sky will not fall” if justices grant this new power and that “our entire government will move toward accountability to the people.”

This argument fundamentally misunderstands both accountability and constitutional structure. True accountability comes from multiple centers of power checking each other, not from concentrating authority in a single individual. The Framers deliberately created a system of separated powers with checks and balances precisely to prevent such concentration of authority.

The administration’s maximalist position relies on the “unitary executive theory,” which claims the president must have complete control over the executive branch. However, as originalist scholar Professor Caleb Nelson recently demonstrated in groundbreaking research, the text of the Constitution and historical evidence from the founding era actually grant Congress broad authority to shape the executive branch, including imposing limits on presidential removal power.

Professor Nelson, whose work has been cited in more than a dozen Supreme Court opinions, concluded that letting presidents fire officials “for reasons good or bad” would grant “an enormous amount of power — more power, I think, than any sensible person should want anyone to have, and more power than any member of the founding generation could have anticipated.”

The Threat to Regulatory Stability and Expert Governance

Independent agencies exist for compelling reasons. As Justice Ketanji Brown Jackson noted, “Congress is saying expertise matters. So having a president come in and fire all the scientists and the doctors and the economists and the Ph.D.s, and replacing them with loyalists and people who don’t know anything, is actually not in the best interest of the citizens of the United States.”

These agencies handle matters requiring technical expertise and long-term consistency. The Nuclear Regulatory Commission makes decisions about reactor safety that must be based on physics and engineering, not politics. The Federal Reserve manages monetary policy with consequences for the entire global economy. The Federal Trade Commission enforces antitrust laws that prevent corporate monopolies from dominating our economy.

The bipartisan structure of these agencies—typically with odd-numbered commissions requiring members from both parties—deliberately encourages negotiation and consensus building. As former SEC Commissioner Allison Herren Lee explained, chairs of these commissions typically seek unanimous decisions whenever possible, and “that negotiating process almost always produces a better, more balanced rule or decision.”

A Concerning Judicial Trajectory

This case continues a disturbing pattern of the Court’s conservative majority expanding presidential power while diminishing other institutions. Last year’s decision in Trump v. United States granted the president immunity from prosecution for official acts. The Court has also recently limited Congress’s power to create independent agencies in cases like Seila Law LLC v. Consumer Financial Protection Bureau.

What’s particularly troubling is the apparent selective application of principles. Several conservative justices, including Brett Kavanaugh, indicated they might carve out a special exception for the Federal Reserve due to its unique economic role. But creating “bespoke exceptions” for powerful institutions while eliminating protections for others reveals this isn’t about constitutional principle—it’s about political preference.

Chief Justice Roberts himself has made expanding presidential removal power a signature project since joining the Court. His questioning during arguments suggested he views the modern FTC as exercising significantly more executive power than its 1935 predecessor, making it unsuitable for the protections affirmed in Humphrey’s Executor.

The Human Impact and Democratic Consequences

Behind the legal arguments are real people and real consequences. Rebecca Kelly Slaughter, the plaintiff in this case, served nearly seven years on the FTC before being fired without cause. She dedicated her career to protecting consumers from deceptive practices and monopolistic behavior. Her firing—and the potential firing of countless other experts across government—represents a rejection of the very expertise that keeps Americans safe.

The individuals who serve on these commissions—whether Republican or Democratic appointees—bring decades of experience in their fields. They understand the complexities of nuclear safety, financial regulation, consumer protection, and environmental science in ways that political appointees focused on loyalty cannot. Replacing them with partisan loyalists doesn’t make government more accountable; it makes it more dangerous.

As former FCC Commissioner Rachelle Chong noted, the removal protections allow officials to “make hard decisions and take the heat for it, whereas the elected politicians can say: ‘Well, I didn’t do it. Those guys did it, and they’re the independent agency.‘” This separation allows for politically difficult but necessary decisions that serve the public interest rather than short-term political interests.

Conclusion: Defending Institutional Integrity

The Supreme Court faces a defining moment for American democracy. A decision granting presidents sweeping removal power over independent agencies would represent perhaps the most significant expansion of executive authority in modern history. It would undermine the careful balance the Framers established and that generations of Americans have maintained.

This isn’t about partisan politics—it’s about preserving the institutional foundations that protect our rights and ensure competent governance. The independent agency structure has served America well for over two centuries because it recognizes that some decisions should be made based on expertise rather than political loyalty, on evidence rather than ideology, on long-term stability rather than short-term political advantage.

As citizens who care about our democracy, we must urge the Court to respect congressional authority to structure the executive branch, to uphold nearly a century of precedent, and to maintain the checks and balances that prevent any single branch from accumulating too much power. The independence of our regulatory agencies isn’t a technical legal matter—it’s a fundamental safeguard of our liberty and prosperity.

The sky may not fall immediately if the Court rules against agency independence, as Solicitor General Sauer claimed, but the gradual erosion of institutional integrity and expert governance will ultimately damage our democracy in ways we may not recognize until it’s too late. We must defend the structures that preserve both liberty and competence in our government.