Trump v. Slaughter tests whether unelected bureaucrats or elected officials will run the federal government.
A Supreme Court case about the president firing a federal agency commissioner might sound like Washington inside baseball. But Trump v. Slaughter, now before the High Court, raises a fundamental question: Who governs: the people’s elected officials, or an entrenched bureaucracy?
At issue in the case is whether the president can remove the leadership of so-called independent agencies. While this issue may seem narrow and uninteresting, it is anything but. In truth, the case touches on two fundamental and related constitutional matters: whether elected presidents actually have the power to execute the laws Congress passes and whether the American people will be allowed to select and control our government officials.
The vast majority of federal laws impacting Americans are not actually statutes passed by an elected Congress; instead, they are rules created by unelected agencies. Agencies regulate everything from what businesses can sell to what doctors can prescribe and which technologies can be built. Agency officials wield enormous influence over daily life, and they remain almost entirely insulated from the ballot box.
In Trump v. Slaughter, President Donald Trump removed Rebecca Slaughter from her post as a commissioner on the Federal Trade Commission. The FTC Act permits removal only “for cause,” meaning inefficiency, neglect of duty, or malfeasance – not policy disagreement. Commissioners typically serve fixed terms unless they engage in serious misconduct. Trump nevertheless fired Slaughter, stating that her continued service was inconsistent with his administration’s priorities.
The government argues that the Constitution is clear: executive power rests with the president, not unelected bureaucrats. According to the government, Article II of the Constitution means that a sitting president gets to hire and fire the people who work in the executive branch. After all, how can presidents “execute” when the people who work for them need not follow presidential directives?
Those who favor independent agencies fear the president will gain too much authority. Justice Elena Kagan voiced this concern at oral argument, warning that at-will removal could allow a president to consolidate enforcement, rulemaking, and adjudicatory power in one office. It’s not an unreasonable concern; it is, however, the result of congressional delegation and a Court that turned a blind eye on separation of powers violations for decades.
At oral argument, Justice Sonia Sotomayor pushed back forcefully, questioning whether today’s Court should second‑guess decisions made in the 1930s. Her concern: that allowing unlimited presidential removal would “destroy the structure of government” and rob Congress of its ability to insulate agencies from presidential control. Sotomayor sees no constitutional problem with Congress encroaching on the executive branch’s power or passing the buck to agencies, so long as Congress deems the arrangement “better structured.”
None of this logic is compelling. Indeed, it overlooks a basic reality. If Congress can offload its legislative responsibilities to agencies and block the president from directing those agencies, then no elected official is truly accountable for the rules that govern the public. That turns the Constitution upside down.
Enter Justice Neil Gorsuch.
At oral argument, Gorsuch identified the real problem: Congress has delegated too much legislative power to federal agencies, and the Court has allowed it. He pointed to the Court’s reliance on what he called an “increasingly toothless” intelligible‑principle doctrine and suggested it may be time to enforce real limits on delegation again.
Bingo.
Gorsuch’s point is one on which liberals and conservatives ought to agree. A federal bureaucracy that is unchecked will take power away from the people. And Congress must not be allowed to delegate excessive authority to the executive branch simply because it believes it to be expedient. The Court must enforce the Constitution’s separation of powers.
If Congress is going to create agencies and allow them to make policy, it had better be clear and limited in what power it gives those agencies, because the Constitution declares the president executes the law.
Returning to major themes, all of this relates to how the government engages with the people. On the one hand, we have the status quo, a large unelected bureaucracy that limits the elected president’s power to execute the law. That, in turn, limits the people’s control over its government.
On the other hand, the Court can return to a constitutional doctrine (which it actually recognized before the late 1930s) in which the president possesses the constitutional authority to execute the law, and that means removing officials who refuse to follow his orders, and in which the Court would police the boundaries of congressional delegation to agencies.
Let the president execute as Article II envisions; let Congress (and not agencies) make the law as Article I envisions; and let the people choose and rule over them all.
Ryan Owens is Director of the Institute for Governance and Civics at Florida State University, and a Professor of Political Science. He specializes in the U.S. Supreme Court, federal appellate courts, and judicial behavior.
