The Supreme Court just made Trump the most powerful president in generations, in Trump v. Slaughter

Trump v. Slaughter, one of two “unitary executive” cases that the Supreme Court handed down on Monday, is the culmination of a nearly 40-year fight by Republican judges to expand the powers of the presidency. It transforms President Donald Trump into the most powerful figure to govern the United States in generations.

The central issue in Slaughter is whether Congress may create “independent” federal agencies, which are led by a board of people appointed by the president, but who cannot be removed by the president except for neglect, malfeasance, or some other cause other than the fact that the president wants to replace them with people who are more loyal to his agenda.

The Supreme Court endorsed these independent agencies in Humphrey’s Executor v. United States (1935), and Congress has created many such agencies since then. Slaughter concerned the same agency that was at issue in Humphrey’s Executor, the Federal Trade Commission, whose leaders have enjoyed some protection from presidential firing since it was created in 1914.

Slaughter overrules Humphrey’s Executor, and eliminates nearly all of Congress’s more-than-a-century-old power to create agencies that may act with some independence from the president. But it’s worth noting that the decision was handed down alongside Trump v. Cook, which strongly suggests that members of the Federal Reserve remain independent from the president.

While independent agencies have existed for more than a century, Republican judges have wanted to eliminate them for a very long time. In 1988, Justice Antonin Scalia wrote a lonely dissent, in Morrison v. Olson, that touted a theory known as the “unitary executive.”

The Constitution, Scalia wrote, provides that “the executive Power shall be vested in a President of the United States.” This, according to Scalia, meant that no one in the federal government could wield power that is “executive” in nature unless that official is fully controlled by the president. The Constitution, Scalia concluded with a flourish, does not say that “some of the executive power, but all of the executive power” belongs to the president and the president alone.

Chief Justice John Roberts’s majority opinion in Slaughter, which is joined in part or in full by all of his Republican colleagues, tracks Scalia’s position. It holds that agency leaders who wield power that “fall well within the heartland of executive power” must be fireable at will by the president.

Nothing about this decision will surprise anyone who has paid attention to the Court’s past two decades of decisions. The Court’s Republican majority started signaling that Humphrey’s Executor was doomed as recently as 2009. The unitary executive played a starring role in Trump v. United States (2024), the Republican justices’ decision holding that Trump is allowed to use the powers of the presidency to commit crimes. And the Court previously ruled against Rebecca Slaughter, the FTC commissioner who sued after Trump fired her, in a temporary decision handed down last September.

But Slaughter does complete a project that the Republican justices have strived to complete for their entire time on the nation’s highest Court. And it gives Trump powers that no president has enjoyed for about a century.

The Republican justices are a little too certain they know what “executive” power is

Broadly speaking, the unitary executive theory contains two propositions. One is that all “executive” power, whatever that means, belongs to the president. The second is that certain governmental functions are definitively “executive” in nature.

The first of these two propositions is the most defensible. The Constitution does say that “the executive Power shall be vested in a President of the United States.” So that does suggest that there is something called the “executive Power” that belongs to a single person.

But the Court’s Republicans have often made very bold claims about what qualifies as “executive” that are not supported by history. Most egregiously, in the Trump immunity decision, the Republican justices did not simply hold that Trump may commit crimes; they held that he may order the Justice Department to target his enemies even if these investigations are “shams” conducted “for an improper purpose.”

The Republican justices reasoned that the power to investigate and prosecute crimes is “the special province of the Executive Branch,” and thus belongs entirely to the president — even if he wields this power unlawfully.

Historically, however, federal judges often had the power to appoint prosecutors — a power that they retain under limited circumstances today. And many historians believe that around the time of the Constitution’s framing, private attorneys, and not government employees within the executive branch, were primarily responsible for prosecuting crimes. So Trump’s claim that the power to prosecute belongs entirely to the executive is anachronistic.

Slaughter rests on a similar argument, saying that the FTC, the formerly independent agency at issue in that case, “enforces and administers some 80 statutes” and thus must be thought of as an “executive” agency. Roberts points, for example, to the fact that the FTC investigates private companies that have allegedly violated certain laws, and “files suits” against these companies.

It should be obvious that many federal statutes are enforced by private lawyers who file suits against private companies on their clients’ behalf. But that doesn’t mean that those private lawyers are subordinate to the president.

The unitary executive theory, in other words, seizes upon a vague line in the Constitution which indicates that some undefined powers belong to the president, and uses that vague line to give very specific powers to Trump. That’s hard to justify as a matter of text and history. But it is still a project that the Republican Party’s judges have been committed to for a very long time.

At least some of the Republican justices believe that the Federal Reserve is special

Almost immediately after the Court handed down Slaughter, it also handed down Cook, which allows Lisa Cook, a member of the Federal Reserve’s Board of Governors who Trump attempted to fire after bringing sham allegations against her — to remain in her job.

The Court previously suggested that members of the Federal Reserve are immune to the unitary executive because “the Federal Reserve is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States.” But it did not explain what this sentence means or why it justifies an exemption to the rule governing agencies like the FTC.

Cook does little to flesh out this vague sentence, although Roberts’s opinion in Cook does spend some time arguing that the idea that there should be a national bank that is somewhat independent of political actors precedes the Constitution itself.

There are, however, powerful policy reasons why the Fed should be independent. Among other things, the Fed has the power to temporarily stimulate the economy in ways that will cause turmoil and high inflation years down the road. So, if the president controls the Fed, he can order it to lower interest rates and send a flood of cheap money to borrowers, injecting cocaine into the US economy during an election year, knowing that the bill is unlikely to come due until the president leaves office — or at least until after the election takes place.

That appears to be enough to have convinced two Republican justices, Roberts and Justice Brett Kavanaugh, to join an opinion letting Cook keep her job for now. But the Cook opinion also emphasizes that it is “narrow,” and it merely holds that Trump had to give Cook a minimal amount of process — “some explanation of the evidence at issue, some avenue for a response, and a deadline by which a response would be due” — before he can fire her.

It remains to be seen, in other words, whether the Court is actually committed to Fed independence. For the moment, however — unlike other independent agency leaders — Cook gets to keep her job against Trump’s will.