During its penultimate decision day, the Supreme Court announced what was arguably the most consequential case of the 2025 October Term: Trump v. Slaughter. The case addressed whether or not President Trump’s firing of Rebecca Slaughter, a member of the Federal Trade Commission (FTC), was legal. The Federal Trade Commission Act states that members of the FTC, an independent agency under the executive branch, can only be removed “‘for inefficiency, neglect of duty, or malfeasance in office.’” Trump, however, did not cite any of these causes when firing Slaughter. Yet the Court held along 6-3 ideological lines that the “for-cause removal provision is contrary to the separation of powers enshrined in the Constitution,” permitting Trump’s removal of Slaughter. This decision furthered the court’s commitment to unitary executive theory, which states that the President should have complete authority over the executive branch, including the power to fire members of independent agencies at will. The Constitution’s text and ratification history favor unitary executive theory, and the practical consequences of a multi-headed executive branch are steep.
The plainest reading of Article II supports a unitary executive. The Vesting Clause states that, “The executive power shall be vested in a President of the United States of America.” The Take Care Clause instructs the President to “take care that the laws be faithfully executed.” Both clauses, which together define the scope and responsibilities of the executive power, only mention one individual – the President – as having a claim to this power. Nothing in the rest of Article II, which outlines how the President is elected, his specific responsibilities, and the impeachment process, implies that the President must share the executive power with anyone. From this, we may conclude that all executive officers must be accountable to the President if he himself is to “faithfully” execute the laws. Statutes abridging the President’s at-will removal of independent executive officers therefore contradict the Constitution’s plain text.
The Federalist Papers further explain the justification for a unitary executive. Numerous passages discussing the executive branch’s character and the removal of officers suggest the need for a singular Chief Executive. The executive branch acts for the present: the President moves with “decision, activity, secrecy, and dispatch” to execute the laws swiftly. The conventional wisdom that power is safer in many rather than one did not apply here because of the overwhelming disadvantages of a plural executive; most notably, it would diminish the characteristic energy and dispatch required to faithfully execute the laws. More explicitly, James Madison alluded to the “magistrate in whom the whole executive power resides” (emphasis added) in Federalist No. 47. This unity does not suggest that the executive branch should consist of only one person. Alexander Hamilton describes the branch as including “the assistants or deputies of the chief magistrate” who “ought to derive their offices…at least from his nomination, and ought to be subject to his superintendence.” The executive branch was a hierarchy in which all power and accountability derived from one Chief Executive.
Additional historical observation reveals that the at-will removal of independent executive officers is an exclusively executive power, and therefore Congress cannot supervise their removal. The Decision of 1789 was a series of legislative debates from the First Congress over whether the President possessed the authority to remove executive officers; Article II requires the Senate’s confirmation for their appointment, but is silent on their removal. There were two primary groups: the first argued that Congress must grant the Executive Branch removal authority because the Constitution did not afford it to the President, and the second believed that the Executive already possessed removal authority. The latter group prevailed, with Madison arguing that, “‘if any power whatsoever is in its nature Executive…it is the power of…controlling those who execute the laws,’ and that “‘the legislature has no right to diminish or modify [the President’s] executive authority.’” He further argued that because the Constitution carved explicit exceptions to executive power – like the appointment of executive officers requiring the Senate’s approval – Congress could not fashion more. Subsequently, the first three presidents removed executive officers unilaterally.
Lastly, statutes that regulate the President’s removal power endanger the separation of powers and threaten democratic integrity. The FTC Act splits control between Congress and the President: the President can remove executive officers only under the “for-cause” parameter Congress established. This creates an executive plurality across two separate branches of government, and thus absolves the President of singular responsibility for the laws’ execution.When this executive power is exercised, the people cannot determine whom or how to reward or punish, since the individual they elected to exercise the executive power is doing so only partially. It would not matter that control is split between two elected bodies because the people elected the President alone to run the executive branch. Democratic legitimacy is not fungible across or within branches.
While the President has complete control over the executive power, it does not follow that executive agencies have no degree of independence. Independence does not entail a lack of complete accountability. The FTC enforces anti-trust laws and creates industry rules independent of the President’s policy agenda, unlike cabinet-level officers, who are appointed by the President to fulfill his policy agenda. The FTC can still legislate, execute the laws, and supervise itself even if only the President can remove its officers. At-will removal does not necessarily transform the FTC into a rubber-stamp for the sitting President’s policies. The FTC is a five-member agency, required to have no more than three members from one political party. The history of legal doctrine outlines how Congress can qualify aspects of their delegated authority as long as the Executive can determine how those qualifications are fulfilled. In short, Congress cannot make specific qualifications (such as how the Executive can remove officers and why) that undermine the President’s control of the executive branch. The FTC’s party affiliation qualification presumes a two-party system embedded in our government’s structure, and Presidential at-will removal enables him to dictate who these party members are. One could argue that the entire structure of the FTC, including its “three-two” party structure, is unconstitutional, but this argument implicates the non-delegation doctrine, and assumes that one agrees with it both in principle and practice. The non-delegation doctrine states that Congress cannot delegate its power to other branches of government or agencies. This opens up a whole other structural argument about independent agencies and congressional delegation in general, an issue that requires another article.
In Slaughter, Justice Sotomayor offers multiple untenable counterarguments against at-will removal and the unitary executive. Begin with her invocation of Hamilton’s statement in Federalist No. 77: “The consent of [the Senate] would be necessary to displace as well as to appoint.” But this statement opposes the character of the executive that Hamilton argued for in previous Federalist Papers. As Chief Justice Roberts notes, there is no reason “why one line [really one word] from Federalist No. 77 should take precedence over the logic of The Federalist as a whole.” Sotomayor also claims that the Constitution’s “silence” on removal authority “leaves [it] to others to decide.” While Article II does not explicitly define removal proceedings, it is important to remember that Article II vests all executive power in the President. Her argument contradicts Madison’s earlier statement that Congress cannot fashion more caveats to Presidential authority than the Constitution affords them.
Sotomayor gives two reasons why Congress should play a role in the removal of FTC officers: first, because the FTC exercises some legislative powers, and second, because the Senate approves appointments to the FTC. Robert notes that the Court’s precedent “abandoned the notion that there are some powers that are only partly executive,” and even Humphrey’s admitted that “‘purely executive’ powers must be controlled by the President.” This conclusion just means that a power enacted cannot be partially executive or partially legislative. While most of the FTC’s enacted powers are purely executive, some are non-executive powers delegated from Congress. Nevertheless, Congress should not oversee officers’ removal because the FTC is an executive agency, not a legislative arm or a branchless agency outside the separation of powers, like the Federal Reserve. Otherwise, control of an executive agency would be divided between two separate branches of government. Removal should also be treated differently from appointments. For one, Article II discusses appointment and not removal. In Federalist 51, Madison elaborates that each department “should have as little agency as possible in the appointment of the members of the others…[which] would require that all the appointments for the supreme executive, legislative, and judiciary magistrates, should be drawn from…the people.” While Madison discusses the “supreme” governmental offices, his point underscores how removal procedures were considered independently from appointment procedures during the Founding.
Justice Gorsuch, in a concurring opinion, agreed with the majority’s argument that the “for-cause” statute is unconstitutional on unitary executive grounds. Yet he also expressed concern over how the President can “effectively exercise” the “vast legislative and judicial powers” that Congress has delegated to the FTC. Unitary executive theory only discusses the executive branch and the President’s prerogative to exercise all executive power; it dictates nothing about his right to exercise some additional legislative and judicial powers. Furthermore, unitary executive theory (and Slaughter) outlines the President’s control within the executive branch and not the branch’s scope itself. The Court restored executive power to the President in Slaughter, but diminished the branch’s powers in Learning Resources, Inc. v. Trump, Trump v. Illinois, and Trump v. Barbara, which struck down the President’s ability to unilaterally impose tariffs, deploy the National Guard, and define citizenship respectively. The Court distinguishes between a unitary executive and an unlimited one. It is possible to have both a “magistracy…carefully limited…in…extent” and a President who maintains complete control over the executive branch.
Slaughter was a narrow decision that did not address the status of “all offices created by Congress” that “necessarily come with executive or even sovereign power attached.” Notably, the Court in Trump v. Cook (released on the same day as Slaughter) ruled that the President could not fire Lisa Cook, a member of the Federal Reserve’s Board of Governors. Slaughter repeatedly echoes that those who exercise executive power are accountable to the President alone. This may indicate that future rulings will inch closer to a full-stop unitary executive, a result that would best accord with the Constitution. The Court’s progression from 2020’s Seila Law v. CFPB to Slaughter this year exemplifies this development. In Seila Law, the Court ruled that congressional for-cause removal statutes violate the separation of powers and the Constitution, but limited this removal to single-member agencies. Slaughter broadened Seila Law to include multi-member agencies like the FTC. Ultimately, Slaughter realigned the executive’s structure with the Constitution’s vision of a unitary executive, and all signs indicate that future rulings will do the same.
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