The Ultimate Triumph of the Unitary Executive

Nearly a half century ago, Ronald Reagan was elected on the promise of shrinking the federal government. Toward that end, his administration incubated a theory of presidential power that would give the president unprecedented control over all discretionary policy making within the executive branch. The new paradigm came to be known as “unitary executive theory.” Yesterday, in Trump v. Slaughter, that theory emerged triumphant.In the decision, the Supreme Court held that Article II of the Constitution guarantees a president’s power to remove members of the Federal Trade Commission—and effectively, all regulatory-commission members—for any or no reason at all. Congress, according to the Court’s 6–3 opinion, violated the separation of powers in 1914 by limiting the president’s power to fire FTC commissioners to cases of “inefficiency, neglect of duty, or malfeasance in office.” In the words of Chief Justice John Roberts, who wrote for the majority, the FTC “unquestionably exercises executive power, and must therefore be controlled by the Chief Executive, in whom such power is vested.” As a result, he said, Rebecca Slaughter “served as the President’s subordinate at the FTC—and that the President was entitled to cut her tenure short.” In so concluding, the Court explicitly overruled the unanimous 1935 decision Humphrey’s Executor v. United States, which held exactly the opposite with regard to the same agency.Slaughter, a Democratic lawyer and former Capitol Hill staffer appointed to the FTC by Joe Biden, was fired from the FTC by Donald Trump just two months into his second term, along with the only other remaining Democratic commissioner, Alvaro Bedoya, also a Biden appointee. Trump asserted no wrongdoing or incapacity on their part. He wrote only 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.”The Court’s decisi