In two separate decisions on Monday, a divided Supreme Court considered the president’s power to remove executive officials. In one ruling, the Court held that President Donald Trump has the power to remove a Federal Trade Commission member. However, in a separate narrow ruling, it said the administration failed to allow a Federal Reserve director to argue her case when Trump fired her for cause. Chief Justice Roberts authored the majority opinion in each case.
In Trump v. Slaughter, President Trump removed Rebecca Kelly Slaughter from her position as a commissioner for the FTC. Slaughter countered by suing Trump and others. She claimed her dismissal violated the terms of the Federal Trade Commission Act, which said that FTC commissioners could only be removed by the president for inefficiency, neglect of duty, or malfeasance in office The U.S. District Court for the District of Columbia found that Slaughter’s firing violated a New Deal-era precedent set in Humphrey’s Executor v. United States (1935), which established the constitutionality of the removal protections in the act.
On Monday, the Court’s majority officially overturned Humphrey’s Executor in a 6-3 decision from Chief Justice John Roberts—affirming the president’s broad power to remove executive officials from office. “The FTC’s for-cause removal provision is contrary to the separation of powers enshrined in the Constitution,” Roberts determined. Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett joined the chief’s decision.
“Humphrey’s framework . . . has not withstood the test of time,” Roberts wrote on Monday. “We long ago abandoned the notion that there are some powers that are only partly executive.”
The circumstances changed in recent years, Roberts said. “We recognized that the FTC exercises executive power,” Roberts added. “And more than 200 years have passed since we recognized that the Constitution ‘vests the whole executive power in the President’ alone.’”
“If anything more is left of Humphrey’s, we overrule it. Humphrey’s has for decades been a result in search of a rationale,” Roberts concluded.
In a concurrence, Justice Neil Gorsuch agreed with the majority but worried about the delegation of too much power to federal agencies. “Congress has endowed formerly independent agencies not just with executive authority, but with enormous legislative and judicial powers as well. And now the President enjoys control over all those powers too. From here, the only sure path is to finish the journey we start today and restore legislative and judicial powers to where they belong: in Congress and the courts.
In her dissent, Justice Sonia Sotomayor worried the Court’s recent decisions in similar cases concentrated too much power in the executive branch. “The majority’s decision continuing that trend today is egregiously wrong. In this case, the Court takes one of the oldest debates in American history and decides that the six Justices in the majority, alone, ought to be the ones to settle it for all time. That decision does not just overrule precedent; it all but ignores that precedent exists.”
“In granting the President this unbridled authority, the Court upends its precedent, misconstrues our history, and sheds any pretense of judicial modesty,” she concluded. Justices Elena Kagan and Ketanji Brown Jackson joined her dissent.
For now, Fed governor remains in the job
Also, in Trump v. Cook, the Supreme Court faced a decision about a government request to stay a district court ruling preventing President Trump from firing Lisa Cook. She started serving a 14-year term on the Federal Reserve Board of Governors in 2023. Trump tried to fire Cook this year, alleging mortgage fraud by Cook before her appointment. Under the Federal Reserve Act, the president can only remove members of the Federal Reserve Board “for cause.” The administration sought to lift a preliminary injunction.
In his 5-4 decision for the Court’s majority, Chief Justice Roberts concluded that the District Court’s order should remain in effect pending the conclusion of litigation over Cook’s attempted removal. “The Government has not shown that it is likely to prevail on the legal arguments advanced in its stay application,” he determined. “Acceptance of the Government’s position would in effect transform the Federal Reserve’s for-cause protection into at-will employment—an interpretive leap out of step with the statute Congress enacted and our Nation’s tradition of central banking protected from political interference.”
Roberts also noted that the Court’s decision was on narrow grounds to allow Cook the opportunity to respond before her termination. And in a telling comment, Roberts said the Court did not need to address Cook’s due process argument, “for the statute alone makes it unlikely that the Government will prevail on appeal as to the validity of the procedures used to fire Cook.” Justices Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, and Ketanji Brown Jackson joined the majority decision.
In his concurrence, Justice Kavanaugh wrote that the decision did not rule on the President’s ability to lawfully remove Cook for cause, and any debate about the Fed’s independent status was for Congress to decide. “If the Federal Reserve’s for-cause removal protections are to be eliminated, that change must occur through the legislative process,” he concluded.
Justice Jackson in her concurrence said she joined “the Court in reaching a merits conclusion in this case. Still, on the most important stay considerations (the risk of irreparable harm and the equities) this application is not a close call. The Government misses the mark by a mile.”
In his dissent, Justice Clarence Thomas said the majority ruling was flawed. “The statute authorizing the President to remove Cook for ‘cause’ says nothing about notice or a hearing, so it does not require notice and a hearing. Any other result would violate Article II of the Constitution, under which the President may remove executive officers at will.”
Justice Samuel Alito, joined by Justice Neil Gorsuch, said the Court acted too soon in accepting the case. “What is before us is simply an application for a stay pending appeal, and the Court should have granted or denied that application in a brief order last fall,” he wrote. “Had we adhered to this well-worn path and decided this application in October, the parties could have continued litigating this case in the lower courts.”
Finally, Justice Amy Coney Barrett agreed with some points made in the other dissents and voiced another concern. “The District Court’s order blocks the President from removing Cook for mortgage fraud, and that is so even if he satisfies the requirements that the Court’s opinion sets out. Under our precedent, that significant interference with the President’s removal authority clears the ‘irreparable harm’ threshold.”
Scott Bomboy is the editor in chief of the National Constitution Center.
