Long before he entered politics, Donald Trump became a household name thanks to two simple words: “You're fired.” Those words catapulted him to television fame and also define his second term as president and his final trip to the high-stakes U.S. Supreme Court.
Mr. Trump has fired dozens of executive branch officials, including the heads of half a dozen agencies, who by law can only be fired “for cause,” which is defined as “ineffectiveness, neglect of duty or malfeasance.” The legality of one of those dismissals will be debated on Monday at the Supreme Court, a court with a conservative six-justice majority that has already expressed tacit support for Mr. Trump's claims.
Trump v. Slaughter could have serious consequences for the presidency and American society as a whole. If the court rules in the president's favor, the White House would have direct control over the leadership of agencies created by Congress to be independent or quasi-independent of the president, insulated from changing political trends in Washington and regulating everything from car seats to the nation's financial system.
Why did we write this
For 90 years, the Supreme Court limited the president's power to fire the heads of independent federal agencies. The court, which hears a case on the issue on Monday, hinted it might agree with President Trump's argument to overturn that precedent.
“What's at stake here is whether you can have independent thinking within the executive branch,” says Lauren McFerran, a senior fellow at the Century Foundation, a progressive think tank, and former chair of the National Labor Relations Board.
Mr. Trump and his supporters view these stakes as the president's inherent authority to manage the executive branch as he sees fit, a power that he says flows directly from the language of Article II of the Constitution, which states that “the executive power shall vest in” the president.
The Slaughter case “is an opportunity for the Supreme Court to restore the president's proper constitutional role as chief executive,” says Hans von Spakovsky, a lawyer for the conservative Heritage Foundation and a former member of the Federal Election Commission.
Ninety years of precedent
Five years ago, the Supreme Court laid the groundwork for this major separation of powers dispute.
In Seila Law v. Consumer Financial Protection Bureau, the court ruled in 2020—5 to 4 on ideological grounds—that the agency's consumer watchdog structure violates the Constitution.
Because the agency was headed by one man whom the president could fire only “for cause,” its structure was “inconsistent” with the Constitution, Chief Justice John Roberts wrote in his op-ed. majority opinion. This structure places “considerable government power in the hands of one individual… [who] not elected by the people and not controlled (through the threat of removal) by someone who is,” he added.
This decision confirmed the 1935 precedent set in the case of Executioner Humphrey v. United States. IN this casein which the Federal Trade Commission was involved, the court ruled that board members who do not perform “any executive function” can be removed from office only “for cause.”
“Whether or not,” Chief Justice Roberts wrote in the Seila Law opinion, in the Humphrey opinion, “the Court viewed the Federal Trade Commission (as it existed in 1935) as not exercising 'any part of the executive power.' Rather, the court at the time viewed the Federal Trade Commission, created in 1914 to fight monopolies, as a legislative and judicial body because it reported to Congress and made recommendations to the courts.
In the Slaughter case, that right or wrong question came back to the judges.
Slow but radical change
Notably, the Slaughter case also involves the Federal Trade Commission. Rebecca Slaughter, a former trade commissioner, sued Trump after he fired her without cause in March. The symmetry is central to Trump's argument that while the justices said the president couldn't fire a Federal Trade Commission member in 1935, the president should be able to do so now.
“The modern Federal Trade Commission exercises fundamental executive power, and its leaders must be fully accountable to the President,” Trump said in a statement. filing a lawsuit. The document, for example, mentions the Federal Trade Commission's ability to “bring civil actions seeking monetary penalties.”
The Supreme Court made similar arguments in upholding Mr. Trump's emergency firing of Ms. Slaughter and other agency leaders, apparently in defiance of Humphrey's decision. When the court agreed to hear the merits of Slaughter's case, three justices dissented, sounding strong warnings about what such a change in law could entail.
“The majority, one by one, has transferred full control of all these agencies to the President,” Justice Elena Kagan wrote in her report. dissent. “Now he can remove … any member he wants, for any reason or no reason at all. And in doing so, he can destroy bipartisanship and agency independence.”
But as Justice Kagan noted, the six conservative justices on the court seem content to expand the president's removal powers in this way. The court's September preliminary ruling refusing to reinstate Ms. Slaughter to her position while her case continues does not guarantee Humphrey's demise. But it is, among other things, a signal that the decision in the Slaughter case is likely to favor Trump, legal scholars say. Such a decision will have a slow but widespread effect on the federal government.
“If the Supreme Court comes out and says, 'We're overturning Humphrey 'The Executioner' … that would apply to every agency in Washington,'” Mr. von Spakovsky says.
The effects may not be felt immediately, but they can be significant, says Nicholas Bagley, a professor at the University of Michigan Law School.
“The day after the conclusion is issued, nothing much changes. Employees of these departments remain in these departments,” he adds. “But they can be removed by the president, and that gives him the ability to influence how they make their decisions.”
Hypothetically, this means the president could direct the Securities and Exchange Commission – the independent agency that oversees and regulates the financial sector – how to conduct investigations, Professor Bagley continues.
“Does it matter to one [investigatory] solution? It's hard to say,” he says. “But instead of going it alone, they'll have to turn to the White House to push through any policies [they] I want to pursue.”
Trump allies argue that the president is more accountable to the public than unelected government officials, and courts should uphold the president's power to remove department heads and employees. A president who “uses office to restore constitutional authority over federal policymaking can begin to correct decades of corruption and remove thousands of bureaucrats from positions of public trust they have so long abused,” the report's authors write. Project 2025conservative plan for Trump's second term.
Fed exception
While the conservative justices may have already signaled the end of Humphrey, they have also already carved out an exception for the Federal Reserve in this new legal landscape. This is not surprising, experts say.
America's financial stability has long been considered a consequence of the Federal Reserve's independence from the executive branch. If political leaders can influence the central bank, logic goesthe bank will prioritize short-term political gains over long-term economic gains.
In a separate case involving Trump's firing of Gwynne Wilcox, the former chairman of the National Labor Relations Board, the court held (again 6-3) that the President could fire Ms. Wilcox without cause. The two-page emergency order stated that the finding did not apply to the Fed's leadership because the central bank “is a quasi-private organization with a unique structure.”
With these verdicts, “the Supreme Court has sent a pretty clear message about its concerns about the Fed,” Ms. McFerran said.
However, the emergency ruling does not have precedential force, so the court will have to formalize this exception for the Fed in one of its opinions this year. This could be the Slaughter case or a separate case involving Mr. Trump's firing of Fed Chair Lisa Cook.
Oral arguments in Cook's case, scheduled for late January, are slightly different because Mr. Trump says he fired her for cause – specifically over allegations that she committed mortgage fraud. (She has not yet been formally charged, and Ms. Cook says there is no basis for the charges.)
Ultimately, the conservative majority on the Supreme Court appears poised to significantly expand the president's ability to fire heads of important executive branch agencies. But it looks like there will be legal hurdles in the process.
“The conservative judges on the court are very committed to [that] “The idea,” says Professor Bagley. “The only thing that slowed them down on this idea was the Fed.”
Now, he adds, “they seem willing to make an exception for the Fed, even if they strip away the independence of every other agency.”
