This term in Trump v. Slaughter and Trump v. Cook, the Supreme Court overturned tenure protections for most agency heads while recognizing an exception for the Federal Reserve System’s board of governors.  Are these decisions correct, do they matter, and what do they imply for federal officials other than agency heads?

In this post, I’ll propose the following answers:

(1) although requiring at-will removal for agency heads is plausibly correct, the Court’s underlying theory of Article II carries serious ambiguities;

(2) Slaughter’s on-the-ground effects may be limited because most independent agencies—unlike the Fed—have been politicized for some time; and

(3) undermining tenure protections for inferior officers and civil servants would be both legally unsound and a bigger deal, so Slaughter should not be read to carry that implication.

1.         Merits of the Court’s Theory

On the merits, the Court in Slaughter relied on the theory of the “unitary executive branch”—the idea that, by vesting executive power in a single president and giving that person the duty to ensure faithful execution of the law, the Constitution requires presidential control over executive functions.  This theory, however, comes in different varieties and the Court in Slaughter seemed confused about which one to pick.

The most compelling version of the unitary executive branch would simply provide that the President must have some adequate means of control through an administrative hierarchy over officials performing executive functions.  As James Madison put it in a congressional speech quoted in Slaughter, there must be a “chain of dependence” linking subordinate officials to senior ones up to the President.

At the same time, because Congress holds authority to create offices and enact laws “necessary and proper to carrying into Execution” the government’s powers, Congress can vest duties and authorities in offices other than the presidency.  Those officers (and not the President personally) must then perform those functions, and Congress may define the hierarchical relationships between these various positions. 

In doing so, Congress should be able to calibrate the mechanisms of hierarchical control.  As the Court recognized in Slaughter, at-will removal should be sufficient to establish the required “chain of dependence.”  But other options should suffice as well.  Even if a given officer is not removable at will, the President has adequate control—indeed, possibly even greater control—if the President (or another officer within the chain of command) can either override the subordinate’s decision or issue binding orders backed up by punitive discipline for unlawful disobedience.

This understanding would accord with a formalist, structural account of the separation of powers:  it would give force not only to the requirement of presidential control over the executive branch but also to Congress’s textual authority to design the apparatus of federal administration.  It also accords reasonably well with overall historical practice.  At any rate, I have argued that it matches historical understandings with respect to the military, over which the President has explicit constitutional command authority, so it should likewise satisfy any debatable inferences of presidential control from the Vesting and Take Care Clauses.

Unfortunately, with respect to agency heads, the Court in Slaughter did not embrace this view.  It instead continued what Justice Sotomayor’s dissent rightly called the Court’s “fixation on removal.”  The Court held that the chain of dependence implied by Article II requires presidential authority to remove agency heads at will; apparently there are no other options.

To be sure, tenure protection was the only question the Court confronted in Slaughter, so perhaps the Court can add nuance in the future.  But some language in the majority opinion suggests the Court might actually go even further.

In several passages, the opinion referred to subordinate officers as “exercis[ing] the President’s power, not their own.”  That formulation that could imply that, in addition to holding removal power, the President may simply discharge those officers’ powers himself.

At the same time, the Court elsewhere suggested a more balanced view—indeed one that subtly improved on the formulations in its earlier removal decision in Seila Law LLC v. Consumer Financial Protection Bureau.  There, the majority referred to executive officials as “wield[ing] executive power on [the President’s] behalf” or even “wield[ing]” the President’s own “authority.”  By contrast, Slaughter emphasized the “chain of dependence” and characterized Article II’s vesting of executive power in a single president as “establish[ing] a hierarchy—a ‘Chief Magistrate’ with whom the buck stops, and below him various ‘assistants or deputies’ who ‘derive their offices form his appointment’ and remain ‘subject to his superintendence.’”  (The quotes are from Alexander Hamilton in The Federalist No. 72.)

This formulation may leave more room to recognize that what Article II requires is a supervisory hierarchy, not direct, personal control of authorities by the President.  In other words, it may leave room to recognize that Article II allows Congress to vest authorities in offices other than the President, provided the President can adequately oversee those offices’ actions through a chain of command—a point I’ll come back to in connection with inferior officers.

In any event, it seems clear based on Slaughter that the President must hold at-will removal authority over agency heads, unless they fall within the distinct “tradition” of permissible independence for banking functions that the Court identified in Cook.

2.         The Tenuous Connection Between Legal and Practical Independence

Insofar as Slaughter upends century-old tenure protections for independent agencies like the Federal Trade Commission (the agency at issue in Slaughter), the case is obviously a big deal.  I am sufficiently cynical, however, to think that the decision’s practical stakes are somewhat lower than the fireworks surrounding it would suggest—a point that the contrast with Cook highlights.

The original vision of agencies like the FTC was that they would make policy in a comparatively apolitical, technocratic fashion.  Much as ideologically mixed panels on a court of appeals may help judges (at their best) converge on a sound view of the law, tenure protections and party-balance requirements for multi-member agencies like the FTC or Securities and Exchange Commission would enable them to craft sound, stable rules supported by relative expert consensus.

If that was the vision for such agencies, however, then partisan polarization long ago overwhelmed it.  As one president or another’s appointees have gained control (often with some time lag after the election), key policies have swung back and forth wildly at notionally independent agencies like the SEC, Federal Communications Commission, and National Labor Relations Board.  Moreover, as Brian Feinstein and Todd Henderson have found, appointees to such agencies are increasingly likely to come from the ranks of Capitol Hill staff—and bring with them the norms of partisan brawling endemic to that branch.

There has not even been a terribly strong correlation between legal and practical independence.  Attorneys General have always been removable at will and yet (at least until the current administration) they strove to protect the independence of their legal and prosecutorial judgments.  By contrast, Biden appointees to the FTC—the agency at issue in Slaughter—pursued an aggressive progressive agenda with the White House’s support.  Generalizing from this sort of contrast, a 2023 study by Neal Devins and David Lewis found little correlation between legal tenure protections and reputations for practical independence among federal agencies.

Ironically, one agency at which legal and practical independence have correlated is the Federal Reserve—the agency addressed in Cook.  The Fed has cultivated a strong ethic of independence, regularly resisting bullying by presidents and other politicians.  In effect, much as DOJ at its best aims to maintain a reputation for professional competence within the legal profession, the Fed has sought to cultivate a reputation for sound technocratic judgments among economists and bankers.  And the political system has defended this aspiration.  When a Trump-appointed U.S. Attorney launched a criminal probe into the Fed’s spending on a building renovation, Senator Thom Tillis stalled all Fed confirmations until the government dropped the investigation.

The contrast between the Fed and agencies like the FTC raises age-old questions about the mix of legal principle and prudential politics in Supreme Court decision-making.  If other agencies like the FTC had enjoyed the same reputation for apolitical independence as the Fed—and the same level of bipartisan political support for that goal—would the Court still have been so willing to brush aside their independence?  On the other hand, if the Fed were run by political toadies instead of serious economists, would the Court still have carved out an exception to Slaughter in Cook?  I suspect the answer in both cases is no.

In any case, we now have to hope that, despite the loss of legal independence, the political system will continue to protect the practical independence of highly technical and societally important functions at agencies other than the Fed.  That category includes functions of independent agencies like the Nuclear Regulatory Commission and Chemical Safety Board, but also functions of non-independent agencies like the Federal Aviation Administration (as well as routine regulatory functions performed by many other agencies in both categories).  We also have to worry about the potentially more consequential question of subordinate agency officials.

3.         Whither the Independence of Inferior Officers?

The next big question for the unitary executive branch will be whether Slaughter’s requirement of at-will removal extends beyond agency heads to inferior officers and civil servants, including officials who conduct adjudications within agencies.  The answer should be no, but unfortunately the Court’s reasoning in Slaughter creates ambiguities on that score.

To return to the model of the unitary executive branch that I started with, tenure protection for inferior officers should be consistent with the theory so long as superior officials in the chain leading up to the President have some adequate mechanism of control.  They almost always do. 

Sometimes, as with some principal officers, the President (or agency head) cannot stand in the shoes of a particular subordinate but can remove that official at will—an arrangement that should be constitutional under Slaughter.  By contrast, when superior officials cannot remove a subordinate at will, they often can reverse or countermand the subordinate’s decisions.  They may even hold authority to discipline such personnel for insubordination.  Given such mechanisms of control, as Chris Walker and Aaron Nielson have explained, civil-service arrangements should often be consistent with the Court’s vision of Article II.

The Court has sometimes signaled that it shares this view.  As I discussed in an earlier post, the Court’s decision last year in Kennedy v. Braidwood Management, Inc. recognized that officials could be adequately controlled by their superiors, and thus qualify as inferior officers, even though those officials, and not the agency head, had the authority to make certain regulatory determinations.

The Court also recognized that such arrangements matter:  they help “preserve[] both expertise and accountability,” as Justice Kavanaugh put it.  That is so because requiring the President and agency heads to override subordinate judgments to get their way can raise the political costs of pursuing unlawful or politicized approaches to administration.  Thus, by designing agencies I this way, Congress can help ensure professionalism and fidelity to law, even as it also preserves policy control over the agency through the requisite “chain of dependence” up to the President.

Tenure protection also probably matters more in terms of incentives for inferior officers and civil servants.  Fired SEC or FTC Commissioners can expect to land on their feet; being canned by a rival party’s president might even be a badge of honor.  By contrast career officials like administrative law judges, FBI special agents, agency staff, and junior military officers may be more dependent on their salaries and thus more vulnerable to manipulation through threats of termination.

What, then, does Slaughter suggest on this point?  By recalibrating Seila’s earlier language about subordinates exercising the President’s own power, the Court may have paved the way to correctly upholding tenure protections when questions about inferior officers and civil servants come up.  If all Article II requires is a “chain of dependence” and a “hierarchy” ensuring that “the buck stops” with the President, then arrangements in which subordinate officers and employees discharge important duties but are supervised in doing so should be constitutional. 

The Court, however, left the point ambiguous by continuing to refer to subordinate officers as exercising the President’s own power, and its willingness to overrule past decisions regarding agency-head independence casts doubt on precedents protecting the independence of inferior officers.

*     *     *

Through various actions including its firing of civil servants as well as its repurposing of personnel between agencies and impoundment of funds, the second Trump administration has pursued an extreme and constitutionally untenable version of the unitary executive branch.  Let’s hope that, despite Slaughter’s reasoning, the Supreme Court embraces a more modest version instead.

Zachary S. Price is a professor at the University of California College of the Law, San Francisco (formerly UC Hastings).