While the holding in Trump v. Slaughter was limited to the Federal Trade Commission (FTC), and the Supreme Court declined to define the outer bounds of what constitutes executive power, there was enough flesh on the bones of the decision for federal commissions[1] to begin to assess whether the limits on removal for their members have been swept aside. In particular, the Court identified executive powers possessed by the FTC that make it “unquestionable” that the FTC exercises executive power and that summary removal without cause must be allowed. Those executive powers are the power to promulgate substantive rules that carry the force of law, the power to investigate and enforce statutes and rules issued thereunder, and the power to file civil suits on behalf of the United States in federal court.

The members of any federal commission that exercises any of these three powers now presumptively serve at will. But this is a nonexclusive list, since the bounds of executive powers remain undefined, so other powers may be deemed “executive” over time. While the reach of Trump v. Slaughter is uncertain, it clearly will not be cabined to the FTC. In my opinion Trump v. Slaughter opens the door to new challenges to commission qualification requirements, party balance requirements, and stated quorum requirements.

Interestingly, the enabling laws of many federal commissions have no statutory provision relating to Presidential removal.[2] While there has been litigation over the President’s removal power in the absence of such provisions, in my view the absence of any statutory limit on Presidential removal means he is not limited to “for cause” removal and the President can remove at will and members of these commissions were subject to at will removal even before Trump v. Slaughter.

In my view Trump v. Slaughter will fundamentally change federal commissions in a number of areas: composition, decisionmaking, and possible severance of statutory authority. To be clear, I am attracted to the unitary executive theory as a matter of principle. I believe the Court’s decision will politicize federal commissions, undermine the integrity of commission decisionmaking, and shatter regulatory certainty. This opinion is based on my experience as a former Chairman and Commissioner of the U.S. Federal Energy Regulatory Commission (FERC), a former senior advisor to the U.S. Secretary of Energy, and a former Majority Counsel of the House Energy and Commerce Committee.

Change in Administrations—”Night of the Long Knives”?

With the Supreme Court’s decision in Trump v. Slaughter, there is no reason to assume summary removal will be peculiar to the Trump Administration and may become the “new normal” going forward at a change in Administration. Widespread removal of members from the “opposition party” will improve the President’s control over commissions.

Not all federal commissions have stated quorum requirements specifying how many members constitutes a quorum, some have a majority quorum requirement stating that a majority of commissioners in office constitutes a quorum, or no statutory quorum requirement, where a commission can set its quorum requirement by rule or follow the common law rule, which also is based on a majority of members in office. A typical five-member commission with a stated quorum requirement of three can be disabled when membership falls below three. However, a five-member commission with a majority quorum requirement or no statutory quorum requirement can continue to operate with one member, since one is a majority of one. The Commodity Futures Trading Commission, structured as a five-member commission, has functioned as a single administrator agency for more than a year.

In the wake of Trump v. Slaughter an incoming President may choose to remove all commissioners from the opposition party at commissions with majority or no quorum requirement, since wholesale removal will not disable those commissions—as long as there is at least one member from the President’s political party in place. Summary removal of commissioners can transform commissions into single administrator agencies.

The removal calculation will be different at commissions with stated quorum requirements. Those commissions may have a majority of members from the opposition party at the change in Administration so wholesale removal could result in loss of quorum and disable commissions from exercising their principal duties. To the extent a commission with a stated quorum requirement is important to the President’s agenda, he may choose to leave enough commissioners from the opposition party in office to maintain quorum. The threat of summary removal could induce those commissioners to be accommodating. If a President is hostile or indifferent to the mission of a commission with a stated quorum requirement that has a majority of opposition members, he could elect to remove all commissioners from the opposition party, even if it completely disabled the commission for months.

Since the Supreme Court has found that protection from removal is contrary to the separation of powers, that begs the question of whether stated quorum requirements themselves are an undue limitation on the President’s duty to “take Care that the Laws be faithfully executed,” if exercising his power of removal can disable commissions with stated quorum requirements. The President could challenge stated quorum requirements and ask that they be struck from enabling laws, reverting to the common law majority rule.  

Commission Composition: Qualifications, Party Balance, Gamesmanship

With respect to the nomination of new commissioners, there may be significant changes. The enabling laws of many commissions have qualification requirements for nominees, many do not, including the Equal Employment Opportunity Commission, Federal Communications Commission, Federal Maritime Commission, FTC, National Labor Relations Board, Nuclear Regulatory Commission, and Securities and Exchange Commission. But nominees to commissions that lack qualification requirements have usually been highly respected individuals with the requisite background and experience.

That may change. If the primary qualification for commissioner nominees going forward is loyalty, at some point that may become the only qualification. The kinds of highly qualified individuals who were interested in serving as an independent commissioner for a term of years in the past may not be attracted to being a non-independent commissioner subject to at will removal, expected to endorse the White House position on all matters of note.

Another reason future commissioners may be less qualified or entirely unqualified is the qualification requirements in some enabling laws are subject to challenge as an undue burden on the President’s appointment powers. This challenge has arisen in the context of President Trump’s appointment of unqualified individuals to the U.S. Commission on Fine Arts and National Capitol Planning Commission.

To be clear, I do not rule out the prospect some future Presidents may elect to nominate highly qualified individuals to serve on principal federal commissions and grant them a measure of independence greater than that afforded by Trump v. Slaughter, but I believe that would be the exception to the rule.

Some may take solace in the party balance requirements in the enabling laws of federal commissions, which typically provide that no more than three members of a five-member commission can be members of the same political party. Seats are commonly referred to as “Republican seats” and “Democrat seats.” That is a handy but misleading shorthand. The enabling laws make no reference to either political party and the only requirement is that no more than three members of a five-member commission be members of the same political party. If challenges to qualification requirements are affirmed on constitutional grounds as an undue burden on the President’s appointment powers, similar challenges could be raised to political party balance requirements.

There is no statutory requirement to nominate any members from the opposition party, two seats at a typical five-member commission could be filled by members of any political party other than the majority or could remain open. Nominees to those two seats could be independents or members of the Libertarian Party, Green Party, or the latest Socialist Party splinter group. Enabling laws allow for a “midnight conversion” of a lifelong Republican or Democrat to an independent or third-party member, since party affiliation is only determined at the point of nomination. That would clear the way to fill all five seats with Republicans or Democrats, as long as two commissioners take a break from their lifelong association with a major political party for a few years.

But when a President removes commissioners from the opposition party, he need not go through all the trouble of filling seats with midnight converts, he can simply leave them vacant. That maximizes political control, while running the risk of loss of quorum at commissions with stated quorum requirements. There is no obligation that the President submit nominations to seats made vacant by removal, expiration of term, or early resignation. Legislation to force the President to make timely nominations to vacant seats that can only be filled by opposition party members is unlikely to survive a Presidential veto and constitutional scrutiny.

If the beginning of an Administration may be marked by a purge of commissioners from the opposition party—a “Night of the Long Knives”—so too could be its ending, if the vacancies created by summary removal were filled in the interim. Summarily removing all commissioners from the opposition political party at the end of an Administration presents an incoming President from the other party with a quandary: if the only members of a commission are partisan adherents to what is now the opposition party, their wholesale removal could thwart redesignation of the chairmanship and cause immediate loss of quorum and disable operations at some commissions, until the nomination process slowly populates the ranks of commissions over a period of months. The disability would be even greater and longer lasting if the Senate were controlled by the opposition party.

Integrity of Decisionmaking

Trump v. Slaughter is likely to result in other fundamental changes in the character of commissions. Congress structured certain agencies as independent bodies in order to insulate these agencies from the politics that affect decisionmaking at executive agencies. Commissions were structured with multiple members to bring a range of backgrounds and expertise to bear on important decisions. Historically, FERC and some other commissions were characterized by their commitment to merits-based decisionmaking, much more so than executive agencies such as the U.S. Environmental Protection Agency (EPA).

Commissions also provide a higher level of regulatory certainty than single administrator agencies. Ordinarily, a five-member commission experiences a turnover of one commissioner a year, so policy changes tend to be gradual. By contrast, executive agencies can sometimes completely reverse policy direction at the change in Administration. Just look at the dizzying reversals on EPA climate policy over the past 20 years.

In general, formerly independent commissions were characterized by a higher level of expertise and a greater continuity of policy than executive branch agencies. In the wake of Trump v. Slaughter, future commissions will likely diverge greatly from this ideal. Formerly independent commissions will no longer be insulated from politics, instead their decisionmaking will be politicized. Instead of drawing on a broad range of background and expertise, commissions will rely on a narrower range, perhaps the opinions of a single commissioner with marginal qualifications. Where decisionmaking had once been merits-based, it may be politicized and highly end result-oriented. Decisionmaking by future commissions may prove erratic, resulting in a high level of regulatory uncertainty.

By licensing summary removal without cause the Supreme Court has removed the political insulation that made it possible for commissions to make difficult, controversial decisions that have long-term public benefits. Less qualified commissioners serving at will may prove unwilling or unable to make merits-based decisions with long-term benefits but short-term political costs, and can be expected to resort to politicized, end result-oriented decisionmaking. That would mark the death of expert commissions.

Divided Government

The scenario where manifestly unqualified nominees and midnight converts are readily confirmed is only possible where the White House and Senate are under the control of the same political party, and where the Senate is supine. While the end of the filibuster on nominations opened the door to this possibility, until recently the prospect of an obeisant Senate confirming totally unqualified nominees would have been considered fanciful. 

Under divided government, where the White House and the Senate are controlled by different political parties, the Senate may refuse to confirm nominees who’s only distinguishing trait is absolute loyalty to a President. For that reason, divided government could produce more qualified commissioners than unified government, by insisting on qualified nominees. It would also be more difficult under divided government for a President to leave opposition party seats vacant, since the Senate could decline to confirm the President’s nominees unless they are paired with nominees from the party that controls the Senate.    

Judicial Review

While merit may matter less to future commissions, it will still matter to the courts. Even a politicized, end result-oriented future commission is subject to the Administrative Procedure Act and the duty to engage in reasoned decisionmaking. Future commissions that exceed their statutory authority and render decisions that ignore the record can expect to be reversed in the courts more frequently than in the past. For example, the historic track records of FERC and the EPA in the courts are quite different. EPA loses in court much more often than FERC and vacatur is a more common outcome in EPA losses than FERC defeats. I believe the difference is explained by the character of their decisionmaking, historically merits-based at FERC and politicized and end result-oriented at EPA. But if the character of the decisionmaking becomes the same, so too may be the outcome. As a result, parties may enjoy greater success in the courts challenging formerly independent commissions, adding another layer of regulatory uncertainty.  

Severability

In the wake of Trump v. Slaughter, it remains unclear what agency powers will be construed as executive, since the Court declined to define the bounds of what constitutes executive power. While in Humphrey’s Executor the 1935 Court described FTC duties as “predominantly quasi-judicial and quasi-legislative,” the 2026 Court did not identify any such FTC duty. Instead, the 2026 Court determined that powers the 1935 Court deemed quasi-judicial or quasi-legislative are now in fact executive. However, the Court did not declare that all powers exercised by the FTC are executive, only that those powers are executive to some degree and that sufficed to transform the commission into an executive agency. The majority was silent on whether the FTC had legislative and judicial powers that were transferred to the President.

But if it is unconstitutional for executive powers to be vested beyond the President’s removal power, is it constitutional to transfer legislative and judicial powers to the President? On this point four Justices argue in favor of severing the legislative and judicial powers of commissions from the formerly independent commissions, while the majority acknowledges severability questions could be presented in the future.

Justice Gorsuch addressed severance to a much greater extent than the majority opinion or the dissent. While severance could be accomplished by Congress or the courts, Justice Gorsuch observes that it may be left to the Court itself, since the President may be averse to surrendering new grants of legislative and judicial power and “[a]uthorities Congress once delegated by a simple majority may now require a veto-proof supermajority to retrieve.”

Severing judicial and legislative functions sounds easy in concept but may be difficult in practice. The Court suggests that powers of an investigative and informative nature may be legislative in nature. But that does not distinguish federal commissions from executive agencies, which are required to submit thousands of reports to Congress. Congress presumably does not believe these reporting requirements constitute a transfer of power to the Executive. 

The greater difficulty would be the disposition of provisions that by their natural reading grant judicial or legislative power but have been used to bring about major public policy change. For example, Section 205 of the Federal Power Act governs rates, terms and conditions for public utilities regulated by FERC. A natural reading of the section suggests it is a legislative or judicial power. In Trump v. Slaughter the Court declared that “filling in” the “details” of a general standard is an executive power, not legislative. But what if the “just and reasonable” standard was filled in over decades, through FERC decisions and court orders, including many Supreme Court decisions? Is the “filled in” Section 205 a legislative or executive power?

Likewise, Section 206 of the Federal Power Act and Section 5 of the Natural Gas Act authorize FERC to act on complaint or on its own motion to remedy undue discrimination in the electricity and natural gas transportation sectors. A natural reading of the section suggests it is a judicial power. But the most important changes in federal energy regulation the past 40 years involved reinterpretation of these New Deal authorities to require open access to the power grid and natural gas pipeline unbundling of gas sales, both of which have had significant customer benefits. Notably, the Supreme Court unanimously affirmed FERC legal authority to order transmission open access. Is this remedial power a judicial power or an executive power?

It will be no simple matter to parse through the powers of scores of laws administered by commissions and inventory which authorities are executive, legislative, and judicial. Frankly, it is unclear whether the Court will recognize any power exercised by any commission as anything other than executive, but until it makes that apparent or defines the bounds of executive power and identifies the legislative and judicial powers of commissions the only clarity that came from Trump v. Slaughter is the FTC is an executive agency.

The dust has not settled and may not for a while.

The Honorable Joseph T. Kelliher was formerly a Chairman and Commissioner of the U.S. Federal Energy Regulatory Commission, a senior advisor to the U.S. Secretary of Energy, a Majority Counsel of the House Energy and Commerce Committee, and an Executive Vice President of NextEra Energy, Inc.

---

[1] I use “commission” to refer to all multi-member bodies whose members are appointed by the President with advice and consent from the Senate.

[2] The enabling laws of the Commodity Futures Trading Commission, Defense Nuclear Facilities Safety Board, Equal Employment Opportunity Commission, Federal Communications Commission, Federal Election Commission, International Trade Commission, and Securities and Exchange Commission have no express removal provision.