SCOTUS Officially Kills Precedent that Protected Agencies from a Vengeful President — But with Special Federal Reserve Carveout

The Supreme Court cast its long-telegraphed death blow to independent agencies Monday, confirming that the president can fire at-will civil servants that were meant to be insulated from political backlash. In a second opinion, though, the Court gave the Federal Reserve a special carveout from this new reality. 

The odd baby-splitting in the combination of Trump v. Slaughter and Trump v. Cook — both authored by Chief Justice John Roberts — reveals the right-wing Court’s priorities: It may be sanguine about the demolition of agencies mostly used to regulate big business and protect worker rights, but is far less willing to let President Trump take over the Fed and unleash global economic chaos. 

In all, the decisions represent a major triumph for the unitary executive theory pushed by the legal right for decades, as the president will now have nearly the entire executive branch under his command. The Court had been steadily marching in this direction for years, hacking away at independent agency protections in different forms. Now a major 1935 precedent protecting agency leaders, Humphrey’s Executor, has fallen.

“Today, the Court discards that democratic regime in favor of one that distorts the structure of Government to fit the majority’s theory of unitary, total executive control,” Justice Sonia Sotomayor wrote in her Slaughter dissent. “The result is a President who emerges with far greater power than ever before. It is a power, however, that neither the People, nor Congress, nor the Constitution bestowed upon him.” 

In Slaughter, the case that overturned Humphrey’s Executor and cleared the way for the president to fire members of non-Federal Reserve independent agencies, Roberts is joined in the majority by Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, with Justice Clarence Thomas joining all but one section. Gorsuch also wrote a concurring opinion. Justice Sonia Sotomayor wrote a dissent, joined by Justices Elena Kagan and Ketanji Brown Jackson. 

In Cook, the case where the Court found the government unlikely to succeed in its attempt to fire Fed Governor Lisa Cook on trumped-up mortgage fraud charges, Roberts is joined by Kavanaugh, Sotomayor, Kagan and Jackson. Kavanaugh and Jackson also wrote concurring opinions. Thomas, Barrett and Alito all wrote separate dissents, with Gorsuch joining in the last.

Cook (the Fed Governor removal case) 

The majority doesn’t entirely shut the door against a future attempt to remove Cook: It says that it’s making no judgment about the facts in that case, merely that the administration has to follow the process and (somewhat ambiguously) that the “cause” for firing must “reflect the Federal Reserve’s unique historical status and role.” The most help it gives on that score is that removal would depend on “the seriousness of the alleged misconduct, and the extent of any nexus that may exist to the Governor’s professional duties.” The “professional duties” piece suggests that the Trump administration’s proffered mortgage fraud claims, which allegedly occurred pre-Cook’s tenure, might not pass muster. Roberts denied Barrett’s charge — that the Court is making it impossible to fire a Fed governor — but left the parameters very hazy.

In short, Roberts reverse engineered a reason to protect the Fed, but no other similarly constituted agencies, from at-will firing. 

In his concurrence, Kavanaugh hastened to point out that the Trump administration itself acknowledged the Federal Reserve’s specialness, seemingly trying to minimize the gulf between his position and that of his natural ally. 

“The Government itself expressly ‘acknowledge[d]’ and did ‘not disput[e]’ that point in this case, even as the Government simultaneously (and successfully) argued that the for-cause removal protections for most independent agencies violate Article II,” he wrote.

Jackson chimed in with her concurrence to add that the Court didn’t even have to get to the merits to rule against the administration in this preliminary posture, since Trump can’t point to any real injury that would require immediate relief. Quoting herself from a prior dissent, she remarked that Trump’s inability to fire someone he wants to fire is “just another species of the far-fetched contention that the President [is] injured whenever he is prevented from doing as he wishes.”

As evidenced by the splits, each dissenter took a slightly different angle on Cook. Thomas called the ruling “an unprecedented incursion into the Executive Branch,” arguing that the Court cannot limit the president’s power to fire officers. 

Alito, joined by Gorsuch, wrote that the Court should have kept Trump from having to reinstate Cook on much narrower grounds while litigation played out: whether conduct dating from before she held office would constitute “cause” for her firing, and whether she was deprived of due process. He argued that deciding bigger questions than those in a preliminary posture early on in the case was improper. 

Barrett wrote up a hybrid of the two arguments. She was also candid about the inconsistency of the Court’s two Monday rulings. 

“The Court’s holding is in serious tension with Trump v. Slaughter, which we also decide today,” she wrote. “Slaughter announces a categorical rule: Whenever ‘an agency ‘executes’ a congressional mandate against private parties, it exercises executive power’ and must be subject to plenary executive control — ‘no ifs, ands, or quasis about it.’”

“Yet here, the Court claims a special exception ‘sanctioned by history’ and based on the Federal Reserve’s role in setting monetary policy,” she added. “How can history support both a categorical rule and a carveout?”

Slaughter (overturning Humphrey’s Executor and allowing at-will firing of most independent agency leaders) 

Slaughter arose from Trump’s firing of a Democratic commissioner of the Federal Trade Commission. In this case, Trump didn’t even bother coming up with a “cause” beyond that he didn’t want Democrats on the FTC. The administration was so confident that the Court’s position would be supportive that, in briefs and during arguments, it mostly just lobbied the justices to overturn the precedent.  

“The FTC’s for-cause removal provision violates the separation of powers,” Roberts wrote for the majority. “In its present form, the FTC enforces and administers some 80 statutes, which cover almost every facet of our Nation’s economy. The tasks it undertakes are ‘the very essence of ‘execution’ of the law’—precisely the President’s constitutional role.”

“Far from the minimal impact that the majority imagines Humphrey’s to have had, Humphrey’s has sat at the center of this Court’s separation-of-powers jurisprudence for nearly a century,” Sotomayor replied in her dissent. “If precedent were any guide, this case would be open and shut: The FTC’s removal protections, as the Court has long held and repeatedly recognized, are constitutional.”

She also pointed out that in recent cases where the Court degraded independent agency protections, it repeatedly upheld Humphrey’s as good law — making it clear that the precedent and its relationship to these agencies has changed less than the Court’s composition. 

She questioned (though welcomed) the Fed’s exemption from the ruling: “What is unclear is why these principles should be limited only to agencies, like the Federal Reserve, that in some respects influence ‘monetary policy.’”

The majority likewise suggested that non-Article III courts, such as tax courts, may also be exempt from at-will firing. 

A concurring Gorsuch, in a notable departure from usual right-wing solidarity, candidly acknowledged the dangers inherent in shifting all the power once vested in independent agencies to the president.

“Open-ended delegations of legislative power have not gone away; now they will just be exercised by agency officials who answer to the President,” he wrote. “The power to write new regulatory crimes still exists, but now the pen ultimately rests in the President’s hand. The ability to judge disputes in-house remains, but now the house is white.” 

He urged the Court to constrain that power, acknowledging that Congress likely won’t be able to muster veto-proof majorities.

Read the rulings here: