The outcome in Trump v. Slaughter, which the Supreme Court will hear on Monday, December 8, could not be more preordained. Slaughter involves a struggle over presidential power that has animated many prominent Republican lawyers and judges since the 1980s. And this peculiar faction of right-wing lawyers and judges now controls the Court itself.
Key takeaways
- One of the Roberts Court’s major projects is reworking how power is distributed among the three branches of government.
- This project includes presidential immunity from many prosecutions, full presidential control over nearly all federal agencies, and a judicial veto over the executive branch.
- The Court’s upcoming decision in Trump v. Slaughter will almost certainly cement President Trump’s control over federal agencies.
- The biggest loser in this rethinking of America’s separation of powers is Congress.
Slaughter is one of the most significant milestones in the Republican justices’ project to remake America’s separation of powers. In Slaughter, the Court is expected to strip Congress of most of its power to create “independent” federal agencies that have some freedom to act in ways that the president may not like. Trump’s arguments in Slaughter closely track the Republican justices’ arguments in Trump v. United States (2024), the decision permitting the president to commit crimes.
Meanwhile, an earlier, separate line of cases, that the Court’s Republican majority also championed, shifted power away from the executive branch and toward the judiciary, permitting the Supreme Court to veto federal policies created by the executive if a majority of the justices believe those policies are too ambitious. These cases often involve a newly created legal doctrine known as “major questions.”
The Court, in other words, is engaged in a wholesale rethinking of the separation of powers. Some parts of this project seek to transfer power away from Congress and to the president. Other parts seek to transfer power from Congress and the president to the judiciary. And none of this project has more than the most tenuous grounding in the Constitution’s text.
The precise issue before the Court in Slaughter is whether President Donald Trump may fire Rebecca Slaughter, one of five commissioners on the Federal Trade Commission. By law, members of the FTC may only be removed “for inefficiency, neglect of duty, or malfeasance in office.” But Trump does not claim that Slaughter was neglectful or malfeasant. Instead, he believes her views are “inconsistent with my Administration’s priorities.”
If you’re holding out hope that Slaughter might prevail, don’t. The Republican justices already ruled last September that Trump could, in fact, fire her (although that September order was technically temporary). While the Court is now going through the motions of reading briefs and holding an oral argument before it issues its final ruling against Slaughter, it is unlikely that the outcome in this case will change.
The case turns on something known as the “unitary executive,” a legal theory that had minimal support on the Supreme Court a generation ago. One of the ur-texts laying out this theory is Justice Antonin Scalia’s dissent in Morrison v. Olson (1988), a dissent that no other justice joined — but that all six of the current Court’s Republicans now view as gospel.
Scalia’s Morrison dissent focused on a provision of the Constitution stating that “the executive power shall be vested in a President of the United States of America.” According to Scalia, “this does not mean some of the executive power, but all of the executive power.” And thus it follows that the president must have full control over — including the power to fire — any government official who wields power that is “executive” in nature.
One problem with this unitary executive theory is that it is far from clear which governmental powers should qualify as “executive.” The Republican justices, for example, all agree that the power to prosecute crimes is a “quintessentially executive function.” But, for much of US history, federal prosecutions were often conducted by private attorneys or by judicial appointees, not by members of the executive branch. Current law still permits federal judges to appoint prosecutors under some circumstances.
Similarly, at least some members of the Court have tried to justify the major questions doctrine as necessary to ensure that Congress, and not the president, makes the most important policy decisions that shape the national economy. But the very first Congress granted sweeping delegations of power to executive branch officials. So the Court’s newly imposed limits on executive policymaking are much more grounded in vibes than they are in historical practice or actual law.
The Court, in other words, is fundamentally reworking the balance of power among the three branches based on vague constitutional provisions and dubious legal theories with little grounding in history. But all six of the Court’s Republicans appear committed to this project. So it is unlikely to end any time soon.
The Republican justices justify transformative changes with the vaguest provisions of the Constitution
By law, the FTC is one of several federal agencies whose leaders can only be removed by the president for cause. Often, Congress insulates agency leaders from being fired for political reasons because it wants an agency to make technocratic decisions without fearing pressure from the White House. In some cases, such as the Federal Reserve, an agency might wield power that would be dangerous if it were used to achieve political ends. (The Supreme Court has signaled that the Federal Reserve is exempt from the unitary executive theory’s command that all agency leaders must be fireable at will by the president.)
The Supreme Court blessed Congress’s decision to protect FTC commissioners from being fired nearly a century ago, in Humphrey’s Executor v. United States (1935).
In their brief to the justices, moreover, Slaughter’s lawyers make a strong case that independent agencies, led by at least some people who could not be fired by the president, have existed since the earliest days of the Republic. In 1790, for example, Treasury Secretary Alexander Hamilton proposed a five-member commission that would oversee repayments of the national debt. Congress largely agreed with Hamilton’s proposal, and gave seats on the commission to the chief justice and the vice president.
The fact that Congress placed the chief justice, the head of the judicial branch, on this commission suggests that the framers took a much less rigid approach to the separation of powers than the current Court. Additionally, both the vice president and the chief justice cannot be fired by the president; they can only be removed via impeachment. So this 1790 commission is an early example of an agency with members not under the president’s control.
The unitary executive theory, however, proposes that Hamilton, the 1790 Congress, and the justices who decided Humphrey’s Executor all misunderstood the Constitution. The premise of the unitary executive is that the power to control federal agencies rests with the president and the president alone — this power is “conclusive and preclusive,” as the Republican justices put it in their Trump immunity decision — and Congress is simply not allowed to touch it.
Indeed, the unitary executive plays a starring role in the Court’s instantly anticanonical Trump opinion holding that Trump, as president, is allowed to commit crimes. Chief Justice John Roberts begins his argument in that opinion by quoting the same vague passage of the Constitution that Scalia relied upon in Morrison — the one stating the “executive power” is vested in the president. Roberts then claims that Trump’s immunity from many prosecutions flows from legal reasoning that will, in the new case, allow him to fire Rebecca Slaughter.
If the president has full control over who leads federal agencies, Roberts argues in Trump, then it follows that “Congress lacks authority to control the President’s ‘unrestricted power of removal’ with respect to ‘executive officers of the United States whom he has appointed.’” Roberts then claims that Trump is also immune from prosecution for anything else he does, under his constitutional authority as president.
The idea is that, when the Constitution gives the president an exclusive power, Congress cannot tread on that power by enacting a criminal statute that limits the president’s use of that power. Likewise, this argument holds, the judiciary cannot tread on the president’s authority by hearing a criminal case questioning his use of that authority.
Nor does Roberts shy away from some of the more horrifying implications of this conclusion. Because the Republican justices believe that the power to prosecute federal offenders is “a quintessentially executive function,” for example, Roberts writes that Trump may not face legal consequences even if he orders the Justice Department to conduct a “sham” investigation or to target someone “for an improper purpose.”
The Republican justices, in other words, invented the concept of presidential immunity from prosecution nearly 240 years after the Constitution was ratified. And, in the Slaughter case, they are almost certain to eliminate Congress’s power to create independent federal agencies (except for, maybe, the Federal Reserve). And they are poised to do so despite a 90-year-old Supreme Court precedent permitting such agencies, and strong evidence that independent agencies have existed since the Washington administration.
And the Republican justices derive all of this from an exceedingly vague line in the Constitution that merely states that the president wields “executive power.”
The Republican justices aren’t just empowering Trump. They also seek to empower themselves.
The Roberts Court’s other major change to America’s separation of powers is the so-called major questions doctrine. As the Court has described this doctrine, it requires Congress to “speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” In practice, however, the Republican justices have wielded the major questions doctrine to strike down policies that are unambiguously authorized by an act of Congress.
One frustrating thing about the major questions doctrine is that a majority of the justices have never agreed on where it comes from. Some of the justices have offered facially ridiculous explanations for the doctrine. Justice Amy Coney Barrett, for example, once claimed that it can be derived from a parable involving a babysitter. But a total of three justices argued, in an opinion by Justice Neil Gorsuch, that it is implicit in constitutional concerns about the separation of powers.
The doctrine, Gorsuch claimed in an opinion joined by Justices Clarence Thomas and Samuel Alito, “ensures that the national government’s power to make the laws that govern us remains where Article I of the Constitution says it belongs — with the people’s elected representatives” in Congress.
Like Article II of the Constitution, which begins with the nebulous line about “executive power” that fuels the unitary executive theory, Article I of the Constitution vests “all legislative powers” in Congress. Gorsuch’s theory is that the power to make major policy decisions is inherently legislative, and thus, Congress cannot delegate it to officials within the executive branch.
As an historical matter, this claim is dubious. Much as early American lawmakers created a commission with members the president could not remove, the first Congress also delegated sweeping authority to executive agencies. Among other things, the first Congress gave executive branch officials overseeing the Northwest Territory broad power to “adopt and publish in the district, such laws of the original States, criminal and civil, as may be necessary, and best suited to the circumstances of the district.” The first Congress also delegated the entirety of its power over patents to Cabinet officials, permitting them to grant patents so long as they “deem the invention or discovery sufficiently useful or important.”
The major questions doctrine is brand new, and thus far has never been used against any president other than Joe Biden. (Although, for what it is worth, the Court may be about to give this shiny new legal theory some bipartisan credibility — some of the Court’s Republicans may use it to strike down Trump’s tariffs.)
But, regardless of whether it is a good idea for the Court to limit how much power Congress may give to the president, the Court’s recent attempts to do so are unusual. In the past, the Supreme Court only attempted to police presidential power in this way twice, in two decisions handed down in 1935.
For nearly all of American history, the Court stayed out of questions about how much power federal law could give the president, in large part because vague constitutional provisions about “legislative” or “executive” power offer no real guidance on where judges should draw the line.
Moreover, while Trump’s incompetence makes a strong case for judicial limits on presidential power right now, Trump won’t be president forever. If the Court cements its new power to veto the executive branch’s policy decisions, it won’t easily give that power up when a more responsible president is in office.
The biggest loser in the Court’s new vision of the separation of powers is Congress
The pattern in all three of the Roberts Court’s attempts to reallocate power among the three branches is that the most democratic branch, Congress, is the biggest loser. The unitary executive strips away Congress’s power to create independent agencies, as well as its power to hold a lawless president accountable by enacting criminal laws that bind the president. The major questions doctrine, meanwhile, shifts power away from both Congress and the president, and gives it to the Supreme Court — which now has ultimate veto authority over any act of Congress delegating power to the president and any decision the president makes under that law.
Some of these changes, such as Trump’s immunity to prosecution, have no precedent whatsoever. Others, such as the major questions doctrine, seek to revive ideas that the Court briefly toyed with three generations ago before rejecting as unworkable. All of them are only loosely tethered to the Constitution’s text, reading expansive and highly detailed meanings into vague words like “executive” and “legislative” — even when the framers did not share these interpretations of those words.
But, whatever the wisdom of this reallocation of power, it appears inevitable that the Republican justices will move forward with their plan. The major questions doctrine is already enshrined in case law, and the Court may even hold that it applies to Republican presidents in the tariffs cases. Meanwhile, the outcome in Slaughter appears to be inevitable. The Republican justices have already ruled that Trump may fire Slaughter once. Now they’re just going through the motions of producing an opinion explaining why they did so.
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