The Supreme Court just heard oral argument in Trump v. Slaughter. At issue was whether the President can fire the heads of the Federal Trade Commission (FTC) at will. But the Court was looking toward the horizon, too. If the Court rules in favor of the President here and holds that the congressionally imposed removal restrictions at issue in Slaughter violate Article II of the Constitution, what would that mean for the next case? Would it mean that the President can remove the judges on the non-Article III Tax Court? Or those who sit on the Court of Federal Claims?

Several Justices on the Court seemed poised to rule for the President in this case. But, at the same time, they seemed reticent to endorse a position that would allow the President to fire some non-Article III adjudicators down the line. The tricky part—as Justice Kavanaugh put it—is “draw[ing]” a “principled, sensible line”: How can they write an opinion that blesses the President’s firing of the FTC Commissioner but keeps some officials, like Tax Court judges, insulated from presidential control and removal?

This is more complicated than one might think. After all, the Court has described the President’s removal authority as “conclusive and preclusive.” That means that authority cannot be limited by Congress or the courts. The President’s power to remove, in other words, is “plenary.” If that’s the case, the Supreme Court has an issue: If it wants to hold that the President can’t fire certain adjudicators, it will have to say that there are, in fact, limits on the President’s removal power. But how can there be limits on what the Court has already deemed a plenary power? Does the Court have to walk back its earlier pronouncements about the scope of the President’s removal authority?

I think not. There is a principled and doctrinally sound way for the Court to keep Article II wholly intact while recognizing that there may be some limits on presidential power. That is, the Court can rule for the President here and reaffirm that the removal power is plenary but nevertheless hold that certain officials—like certain adjudicators—are protected from at-will removal. How? It can hold that the conclusive-and-preclusive removal power is off-limits to Congress and the courts, but that such power is limited by other provisions of the Constitution. Put another way, the other branches may not limit the President’s power, but other constitutional provisions—like the Due Process Clause—might.

As I argue in a forthcoming piece, this analytical approach to thinking about “plenary” powers is familiar. In the Article III context, “it’s well established that Congress has plenary power over the lower federal courts. But, even so, Congress’s seemingly plenary power is not unlimited. Its power is subject to so-called ‘external restraints.’ These are other parts of the Constitution, outside of Article III, that constrain Congress’s authority over the lower federal courts. For instance, Congress can’t strip jurisdiction in a manner that violates the Due Process Clause. The Due Process Clause is, in other words, an external restraint on Congress’s otherwise unlimited power.”

Scholars have embraced this external-restraints model when talking about Article III. But courts and scholars should also use this framework when confronted with questions about Article II. Questions about presidential power should be addressed in two steps: “First, we can ask whether the President is acting in his ‘conclusive and preclusive’ zone of authority. And, if so, we can then ask whether any external restraints, outside of Article II, limit that otherwise plenary power.”

In fact, when it comes to some Article II disputes, we already employ such an approach. For example, prosecutorial discretion is another “core” Article II power. The other political branches can’t meddle with it. It’s the executive branch’s, and its alone. Still, the executive branch cannot use its discretion in a racially discriminatory manner. That would violate the Equal Protection Clause. So, one can say that prosecutorial discretion is a conclusive and preclusive power. “But that doesn’t end the story. Outside of Article II, other parts of the Constitution—namely, the Constitution’s equal protection components—curb that otherwise plenary power. The Equal Protection Clause is an external restraint on Article II.”

Removal questions can be handled the same way. The Court’s been clear: Removal is a conclusive and preclusive presidential power. Congress and the courts can’t touch it. But is that plenary power curbed by an external restraint? Are there other constitutional provisions that might limit it?

Maybe. Or maybe not. As I argue in that forthcoming essay, there’s a way to read cases like Myers v. United States, Humphrey’s Executor v. United States,and Wiener v. United States to stand for the idea that the Due Process Clause might curb the President’s removal and directive power. The argument goes something like this: “[A] core component of procedural due process is the right to an ‘unbiased’ or ‘impartial decision maker.’” If an executive official adjudicating a claim in the Tax Court fears removal if she doesn’t decide a particular way, that might affect her impartiality. The Due Process Clause, then, might prohibit the President from removing officials who adjudicate certain disputes. Without such a restraint, the constitutional guarantee of an impartial decisionmaker could be threatened.

If—and it’s a big “if”—such an external restraint on removal exists, it would be a narrow limitation. It likely wouldn’t apply to adjudicators who make policy or who wield “considerable executive power”—like those at the FTC or the National Labor Relations Board. Instead, this rule may apply only to adjudicatory bodies like the War Claims Commission at issue in Wiener: There, the “Commission was established as an adjudicating body with all the paraphernalia by which legal claims are put to the test of proof.” It had “jurisdiction to receive and adjudicate according to law,” and its work had an “intrinsic judicial character.” Thus, to the Court, such a body had to be “free from the control or coercive influence, direct or indirect.” That last part—that the Commission had to be “free from the control or coercive influence, direct or indirect”—suggests that the Court was worried about the independence and impartiality of the Commission. The Court didn’t mention the Due Process Clause. (And, as the Solicitor General just argued, Wiener may have been wrongly decided.) But one could read the case as the Court recognizing that the Due Process Clause limits the President from removing some executive adjudicators. Wiener, then, may be an example of the external-restraints framework in action.

Indeed, in 2021, the Court seemed to read Wiener exactly that way. In Collins v. Yellen, Justice Alito, writing for the Court, dropped a footnote: “In Wiener[], the Court read removal restriction into the War Claims Act of 1948. But it did so on the rationale that the War Claims Commission was an adjudicatory body, and as such, it had a unique need for ‘absolute freedom from Executive interference.’” An adjudicatory body had to be protected from “Executive interference”? It sure seems like, even if it didn’t explicitly invoke the Due Process Clause’s guarantee of an impartial decisionmaker, the Court thought some adjudicators in the executive branch may enjoy removal protection in order to ensure their impartiality.

This footnote in Collins might prove to be crucial in Slaughter. After all, Chief Justice Roberts and Justices Thomas, Gorsuch, Kavanaugh, and Barrett signed on to that footnote. In the 2024 case of Trump v. United States, all six of those Justices also joined an opinion reiterating that the President’s removal power is “unrestricted.” What’s that mean? Read together, these cases suggest that these six Justices view the removal power as plenary but may nonetheless think that certain executive adjudicators may be insulated from removal. One way to square that circle is to view their stance through the external-restraints model: These Justices agree that the Article II removal power is conclusive and preclusive. The other branches can’t touch it. But other constitutional provisions—outside of Article II—may still curb that otherwise plenary power.

The Court has never made this point explicitly. But if the Justices are looking for a way to uphold the President’s firing of the FTC Commissioner while ensuring that certain executive adjudicators remain free from executive branch influence, then embracing the external-restraints framework makes sense. This model offers the Justices a principled and doctrinally sound way to draw that line.  

And, as I argue elsewhere, “this approach ensures that finding limits on executive power won’t come at the expense of diluting the President’s conclusive and preclusive authorities. If any limits on those core powers exist, they wouldn’t come from chipping away at Article II. Such limitations would come only from other constitutional provisions, leaving Article II entirely intact. That matters. It means that limitations on core executive powers can be derived only from the Constitution itself—not from Congress or the courts.”

Elias Neibart graduated from Harvard Law School in May 2025. He now works as a law clerk in New York.