The huge expansion of presidential power and the court’s embrace of the unitary executive theory would surely surprise our founders

In the week when we celebrate the 250^th anniversary of the Declaration of Independence, which was very much a protest against executive power, the Supreme Court on Monday significantly expanded the powers of the president. As Justice Sonia Sotomayor declared in her dissent in Trump v. Slaughter, “The result is a President who emerges with far greater power than ever before.”

Actually, the Supreme Court decided three cases of great interest to the Trump administration on Monday and ruled against it in two of three. But these decisions were not of equal significance. The most important was Trump v. Slaughter — and that was a huge victory for the president in allowing him to fire seemingly almost anyone in the executive branch of government and in the court’s embrace of the “unitary executive theory” of presidential power.

Rebecca Slaughter, a Democrat, was nominated to the Federal Trade Commission by Trump in 2018, and the Senate unanimously confirmed her. In 2024, Slaughter was reappointed by President Joe Biden and confirmed by the Senate for a second term. A federal statute provides that FTC commissioners can be fired only “for inefficiency, neglect of duty, or malfeasance in office.” Trump fired Slaughter — and the heads of many other federal agencies — without any claim of cause.

This should have been an easy case for the court. Ninety years ago, in Humphrey’s Executor v. United States (1935), the court unanimously held that Congress could prevent the president from firing commissioners on the Federal Trade Commission unless there was just cause for the firing. The court stressed that Congress, to carry out its policies, could limit presidential removal of commissioners unless there was good cause for the firing.

The Supreme Court followed this principle in many subsequent cases. In Wiener v. United States (1958), the court went further and held that even without a statutory limit on removal, the president could not remove executive officials where independence from the president is desirable. Wiener involved the president’s firing a member of the War Claims Commission. 

Unlike the Federal Trade Commission Act in Humphrey’s Executor, the statute creating the War Claims Commission did not expressly limit the president’s removal power. However, the court concluded that the functional need for independence of the War Claims Commission limited the president’s removal power. The court explained that Congress’s intent was for the War Claims Commission to award claims based on merit rather than on political influence.

In Morrison v. Olson (1988), the court, in a 7-1 decision, held that Congress could authorize the appointment of an independent counsel to investigate alleged wrongdoing by the president or high-level executive officials and could limit firing to where there was just cause. Chief Justice William Rehnquist, a staunch conservative, wrote the opinion for the court and explained: “In Humphrey’s Executor, we found it ‘plain’ that the Constitution did not give the President ‘illimitable power of removal’ over the officers of independent agencies. Were the President to have the power to remove FTC Commissioners at will, the ‘coercive influence’ of the removal power would ‘threate[n] the independence of [the] commission.’”

Quite significantly, the court expressly rejected the unitary executive theory. This is a theory of presidential power developed by young lawyers in the Reagan administration, including John Roberts and Samuel Alito. When Alito went before the Senate Judiciary Committee for his confirmation hearings in January 2006, a primary ground for opposing his confirmation was his embracing of this expansive view of presidential powers. In Morrison v. Olson, Rehnquist emphatically rejected this theory and wrote, “we have never held that the Constitution requires that the three branches of Government operate with absolute independence.”

But in Trump v. Slaughter, the court expressly overruled Humphrey’s Executor and effectively overruled Wiener v. United States, Morrison v. Olson, and many other cases. The court explicitly embraced the unitary executive theory. The court concluded its opinion: “To ‘discharg[e] the duties of his trust,’ the President must have the assistance of officers he can trust.... Neither Congress nor the courts may saddle him with those with whom he cannot work. Subordinates who exercise the President’s power are subject to removal by him.”

But the assumption of that statement is that commissioners on the Federal Trade Commission and similar agencies are “exercising the President’s power.” Quite the contrary, they are exercising Congress’s authority under the Constitution. As Sotomayor explained, this was to precent these “agencies becoming mere political instruments, which could be turned against political enemies with one hand and used to grant favors to allies with the other.”

For decades, Congress has relied on Humphrey’s Executor when creating myriad federal agencies — the Securities and Exchange Commission, Federal Communications Commission, National Labor Relations Board, to name just a few — with commissioners who can be fired only for cause. This was to provide the commissioners some degree of independence from the president.

And, in Slaughter, the court again overruled longstanding precedent. As Sotomayor said, “[n]inety years of precedent and 140 years of consistent political practice should have been more than enough to resolve this case.”

The court decided another case on Monday about presidential removal power and ruled against Trump, but on very narrow grounds. In Trump v. Cook, the court held that Trump could not fire Lisa Cook, a governor on the Federal Reserve Board, without providing her the notice and opportunity to be heard, as required by a federal statute.

Cook was appointed to the Board of Governors in 2022, at first to complete the final two years of an unexpired term. A year later, however, Biden nominated Cook to a full 14-year term, and the Senate again voted to confirm her. Cook’s term on the Federal Reserve is set to expire in 2038. As with the Federal Trade Commission, federal law allows removal only for good cause. Trump fired Cook, claiming that she had engaged in mortgage fraud. No court or agency has found that Cook did anything wrong.

In a 5-4 decision, with the majority opinion again written by Roberts, the court ruled for Cook. The court stressed the unique role of the Federal Reserve Board, tracing its history back to the first Bank of the United States during the presidency of George Washington. But the court’s ruling was on the narrow ground that under the federal statute “Cook was entitled to notice and some opportunity to respond prior to her termination.”

Finally, the court ruled against the position taken by the Trump administration in Watson v. Republican National Committee. Mississippi law, as in many states, allows the counting of absentee ballots postmarked by election day but received up to five days later. 

The challengers, supported by the Trump administration, argued that federal statutes setting the day for federal elections requires that ballots be received by election day. But the Supreme Court, in a 5-4 decision with the majority opinion written by Justice Amy Coney Barrett, came to the commonsense conclusion: “The election-day statutes say nothing about ballot receipt, and we cannot add to the words Congress chose.” 

In fact, the only surprise is that four conservative justices — Thomas, Alito, Gorsuch, and Kavanaugh — came to the opposite conclusion because nothing in the federal law, explicitly or implicitly, prevents a state from counting absentee ballots mailed in a timely fashion.

Perhaps when a scorecard is done of Trump’s wins and losses in the Supreme Court, June 29 will be regarded as mixed. But that would overlook the huge expansion of presidential power in the court’s embracing the unitary executive theory and allowing the president to fire almost anyone in the executive branch of government. 

Those who drafted the Declaration of Independence deeply distrusted executive power and would surely have recoiled at this Supreme Court’s approach to it.

Erwin Chemerinsky is dean and Jesse H. Choper Distinguished Professor of Law at the University of California Berkeley School of Law.

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