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One of Chief Justice John Roberts’ most enduring commitments has been to expanding presidential power. In that regard, Roberts has long opposed Congress’ limits on the president’s authority to remove the officers heading the nation’s executive agencies. Indeed, as far back as 1983, Roberts, serving in the Reagan administration, wrote a memo to the White House counsel that “the time is ripe to reconsider the constitutional anomaly of independent agencies.”
This summer, Roberts was able to turn his long-held goal into reality. Writing for the majority in Trump v. Slaughter, the court ruled that the president may unilaterally remove those officers leading nearly all of the nation’s federal independent agencies. Much has been written on this decision. But much less has been said on how Roberts carefully, and then all at once, guided the court to its decision in Slaughter. This not only provides insight into Roberts’ core conservative commitments but how he has wielded his power on a fractured court.
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Central to this tale is the chipping away, and eventual reversal, of Humphrey’s Executor v. United States, a unanimous Supreme Court decision from 1935. In Humphrey’s, the court upheld congressional restrictions on President Franklin Roosevelt’s ability to remove a Federal Trade Commission commissioner, William Humphrey, who had been appointed by FDR’s predecessor, President Herbert Hoover.
Although Congress had specified that an FTC commissioner could be removed only for “inefficiency, neglect of duty, or malfeasance in office,” Roosevelt did not invoke those grounds when firing Humphrey. Instead, as the president explained to him, “I do not feel that your mind and my mind go along together on either the policies or the administering of the Federal Trade Commission.” Humphrey sued for reinstatement and ultimately prevailed before the Supreme Court, although not before passing away in 1934 (hence, Humphrey’s executor).
Throughout the 20th century, Humphrey’s sat alongside Myers v. United States, decided in 1926, in which the Supreme Court rejected the claim by a postmaster that he could not be removed from his position by the president. Myers relied on an 1867 law known as the Tenure of Office Act that required the president to obtain Senate consent before removing certain executive officers. In rejecting Myers’ claim, the court held that the postmaster was a subordinate of the president and could be removed unilaterally at will. In an opinion written by Chief Justice (and former President) William Howard Taft, the court reasoned that the president has “the exclusive power of removal” so that the president can “take care that the laws [are] faithfully executed.”
The court in Humphrey’s distinguished between “purely executive” officials (such as the postmaster in Myers) and agency officials (such as FTC commissioners) authorized by Congress to perform “quasi-judicial” and “quasi-legislative” duties. The court described this distinction as between officials assisting the president in executing the laws, on the one hand, and officials responsible for carrying “into effect legislative policies” and performing “other specified duties as a legislative or as a judicial aid.” As Professor Nathaniel Wald Donahue has explained, “Progressive Era lawyers used the categories of ‘quasi-judicial’ and ‘quasi-legislative’ to refer to administrative bodies that were understood to be executive-branch auxiliaries to the judiciary and legislature.”
In 1988, the Supreme Court applied Humphrey’s in the case of Morrison v. Olson, when it upheld the “good cause” restriction on the attorney general’s authority to remove an independent counsel appointed “to investigate and, if appropriate, prosecute certain high ranking Government officials for violations of federal criminal laws.” The court not only again credited the “distinction between ‘purely executive’ officials and officials who exercise ‘quasi-legislative’ and ‘quasi-judicial’ powers,” but rejected the argument that the removal restriction should not apply to the independent counsel engaged in the “purely executive” task of prosecution. (The lone dissenter in Morrison was Justice Antonin Scalia, who lost that battle but now has decisively won the removal power war.)
Accordingly, when Roberts became chief justice in 2005, Humphrey’s was a valid, longstanding precedent. Over the course of 16 years, through a “removal trilogy,” Roberts made sure this was no longer the case.
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2010’s Free Enterprise Fund v. Public Company Accounting Oversight Board, the first case of the trilogy, involved the Public Company Accounting Oversight Board, established by Congress in 2002 to regulate the accounting industry. Essentially the PCAOB was supervised by the Securities and Exchange Commission. The SEC appointed PCAOB members and could remove members, but only for “good cause shown.” By a 5-4 vote, in an opinion written by the chief justice, the court held that this dual level of protection by Congress from removal for board members violated the constitutional separation of powers.
In reaching this conclusion, Roberts employed three strategies. First, he elevated certain presidential powers over those of Congress. In particular, Roberts invoked Article II’s vesting clause, or that “the executive Power shall be vested in a President of the United States of America,” and combined this with the executive’s constitutional prerogative to “take Care that the Laws be faithfully executed.” In the chief’s words, “the President cannot ‘take Care that the Laws be faithfully executed’ if he cannot oversee the faithfulness of the officers who execute them.”
In reaching this conclusion, Roberts downplayed (1) that Congress created the PCAOB and (2) that the separation-of-powers claim at issue involved a dispute between the law Congress wrote and the president’s claimed removal authority. Roberts acknowledged that “[n]o one doubts Congress’s power to create a vast and varied federal bureaucracy.” Yet he then immediately added, “ut where, in all this, is the role for oversight by an elected President?” Throughout his opinion, Roberts elevated the president’s removal authority while at the same time minimizing Congress’ legislative authority to specifically “set the terms by which” agency heads hold their positions.
The chief justice’s second strategy in Free Enterprise Fund was to apply a formalistic understanding of the separation of powers even though prior cases, including Humphrey’s Executor and Morrison, took a more functionalist approach. A formalist believes there are clear boundaries between the different branches of government and insists upon adherence to those boundaries. For Roberts, the executive branch’s responsibility to execute the laws encompasses what occurs between Congress legislating pursuant to Article I and the judiciary deciding cases under Article III – a vast province under the president’s supervision.
Formalism contrasts with functionalism, which denies the imperative of keeping the branches separate and insists upon the importance of workability in evaluating the relationship between them. In his dissent in Free Enterprise Fund, Justice Stephen Breyer, a quintessential functionalist, pressed the need for governmental flexibility to allow Congress “to respond to future ‘exigencies’” in creating agencies and designing their structure.
The third leg of Roberts’ Free Enterprise Fund opinion was his selective reading of the history of the president’s removal power. While Article II explicitly allows the president to appoint executive officers, it is silent regarding the president’s authority to remove them. Accordingly, history must be consulted. As has been canvassed extensively, the historical record is complicated. And although Breyer made this point in dissent, Roberts downplayed the debate. While the “removal of executive officers was discussed extensively” at the First Congress, Roberts breezily concluded that the “view that ‘prevailed . . .’ was that the executive power included a power to oversee executive officers through removal.”
Hence the three prongs of Roberts’ approach to attacking Humphrey’s: elevating the president’s constitutional authority to take care that the laws are executed over Congress’ authority to legislate; employing a formalistic approach to resolve the separation of powers dispute; and insisting that the historical evidence provides a conclusive answer to the question presented.
Ten years after Free Enterprise Fund, in Seila Law LLC v. Consumer Financial Protection Bureau, the Supreme Court addressed a constitutional challenge to the structure of the Consumer Financial Protection Bureau, established by Congress in response to the financial crisis in 2008. As with the PCAOB, Congress limited removal of its leadership to cause to protect the agency from the intense political pressure attendant to financial regulation. In contrast to other independent agencies led by multiple members, such as the SEC or the Federal Communications Commission, the CFPB had a single director subject to removal by the president only for “inefficiency, neglect, or malfeasance.”
The court sustained the challenge by a 5-4 vote in an opinion written by Roberts that employed essentially the same reasoning and rhetoric as in Free Enterprise Fund. Indeed, the first case cited by Roberts was Free Enterprise Fund itself, for the importance of the president’s removal authority to ensure full accountability “for discharging his own responsibilities.”
The constitutional sin of Congress’ approach in structuring the CFPB was, according to Roberts, its novelty. Leaning in even more to the formalistic, anti-innovation approach to separation of powers taken in Free Enterprise Fund, Roberts cast Myers as controlling authority and Humphrey’s as the narrow exception, stating, “[o]ur precedents have recognized only two exceptions to the President’s unrestricted removal power”: the first, Humphrey’s, involved an expert agency “led by a group of principal officers,” and the second, illustrated by Morrison, involved an inferior officer with “narrowly defined duties.” According to Roberts, Congress’ “deviat[ion]” from these precedents rendered the director’s for-cause protection from removal unconstitutional.
The Supreme Court decided Seila Law in the summer of 2020. By the time the year ended, Justice Amy Coney Barrett had succeeded Justice Ruth Bader Ginsburg, giving conservatives a supermajority of six, and Joe Biden had defeated Donald Trump in the presidential election. Four years later, Trump was elected once more.
From his first day in office in 2025, Trump exercised executive power – including his removal authority – more aggressively than any of his modern predecessors. In March 2025, Trump fired the two Democratic commissioners on the Federal Trade Commission, stating “that their ‘continued service on the FTC [was] inconsistent with [his] Administration’s priorities’ and that they were removed from office ‘pursuant to [his] authority under Article II of the Constitution.’”
One of the fired commissioners, Rebecca Slaughter, filed suit. The Trump administration could not have asked for a better case to argue for overruling Humphrey’s: Slaughter had been terminated from the same agency, the FTC, that was at issue in that 1935 decision.
The issue before the court in Slaughter was broader and more consequential than the questions presented in Free Enterprise Fund and Seila Law. In those earlier cases, the court evaluated the removal restrictions without addressing whether Humphrey’s should be overruled. The novelty of the agency structure designed by Congress was sufficient to strike down those restrictions. Now, if the court agreed with the administration, it would have to explain why, as a matter of stare decisis, Humphrey’s should be discarded.
With the wind of five additional votes at his back, Roberts demolished Humphrey’s. His opinion began with a historical paean to the unitary executive. The Framers vested the executive power in “a President” and insisted that there would be a single person who would sit atop the executive branch hierarchy, he wrote. Roberts acknowledged, quoting Alexander Hamilton, that the “Chief Magistrate” would have “assistants or deputies.” But to ensure accountability, those officers “must be removable by the President.”
Roberts then surveyed the governing case law – including his own. He described Myers as “scholarly” and “seminal,” rhetorically elevating this precedent. Perhaps most importantly, Roberts applied his broad understanding of executive power to repudiate Humphrey’s. He explained that the current FTC on which Slaughter served is different from the agency described by the court in 1935. According to Roberts, since “its creation in 1914, the FTC has accumulated vast rulemaking, enforcement, and adjudicatory powers” that involve it in the execution of the law. Because the FTC is now engaged in the “President’s constitutional role,” the agency must be “controlled by the Chief Executive” and commissioners must be removable at will. “If anything more is left of Humphrey’s,” Roberts wrote, “we overrule it.”
In doing so, Roberts finally subordinated the vast majority of executive agencies to the president’s will.
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So, what exactly, does this tell us about the chief justice?
First, Roberts knows how to play the long game, having done so for years on the court and more than four decades as a lawyer. To be sure, Roberts had help along the way. Justice Brett Kavanaugh, who worked in the White House when George W. Bush was president, played a role in developing the court’s jurisprudence in this area. As a judge on the U.S. Courts of Appeals for the D.C. Circuit, Kavanaugh wrote dissenting opinions that ultimately were upheld in Free Enterprise Fund and Seila Law. (As a justice, Kavanaugh voted with the majority in both Seila Law and Slaughter.) Trump is, of course, a critical figure in this story as well – most notably through his executive actions and his appointment of three justices (Justice Neil Gorsuch, Kavanaugh, and Justice Amy Coney Barrett) sympathetic to Roberts’ position on presidential power.
Second, there are limits to even Roberts’ commitment to executive authority over the independent agencies. He also wrote the court’s opinion in Trump v. Cook, decided the same day as Slaughter, in which the court made it clear that the statutory restriction on removing a Federal Reserve governor remained valid. Roberts justified this exception for the Federal Reserve on the basis of “history and tradition.” As Roberts wrote in Cook, “the Government concedes, Congress limited the President’s power to remove Governors for good reason – ‘[t]o preserve the independence of the Federal Reserve’ and to continue the ‘long tradition’ of ‘monetary policy . . . exercised independent of . . . executive influence.’” Accordingly, Roberts elaborated, any “change in that scheme must come from Congress, not the courts.” (Justice Clarence Thomas vigorously challenged Roberts’ historical account and reasoning.)
Finally, and relatedly, the removal trilogy illuminates the chief justice’s careful dance between his professed institutionalism and his core conservative commitments. In the first part of the trilogy, Roberts confined Humphrey’s but did not squarely question its validity. Subsequently, with the benefit of his own precedent and a supermajority, Roberts did not need to check his fidelity to the president’s unfettered removal authority. Indeed, Roberts may have figured out how to square this circle, taking an institutionalist approach to lead the court in its adoption of fundamental conservative principles. As the justices consider cases this term involving climate change, assault weapons, and religious freedom, we will see how fully – and at what pace – Roberts continues to embrace this strategy in his leadership of the court.
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[ H/T SCOTUSblog ]
