Welcome to the era of Slaughter

Some context for a new period of executive aggrandizement

Spare a moment to think of Rebecca Slaughter. She was not just fired under Trump as head of the Federal Trade Commission; she will now give her name to a precedent that tears at the notion of an independent and expert public service she once represented.

There is no way to interpret the Slaughter decision as anything other than a defeat for expert, independent government, and the power of Congress to enable such government. Trump made clear that he saw it as a monumental victory handed to him by the Roberts Court.

The ruling allows Trump to remove independent agency heads. This is consequential for regulatory agencies in particular, and the promise that such regulators will be somewhat independent of the President of the day, and by extension, the corporations/donors they oversee.

The decision was expected based on prior court actions and oral arguments, especially when Chief Justice Roberts refer to Humhprey’s Executor precedent that supporting independent agencies as a “dried husk.” That does not make its impact any less breathtaking.

It is also a measure of how degraded our expectations of the Supreme Court are, and how complicit it is in Trump’s project of democratic backsliding: we are unsurprised when the Supreme Court drops a 90 year old precedent and overturns legislation to at the behest of a President who denies democratic outcomes.

At no point did Trump make any effort to justify the firings. I do think this bears mentioning because the magical thinking behind unitary executive theory implies some governing logic behind it — that Trump is an nationally elected official, and therefore most responsive to the will and interests of the people. The reality is that Trump is a deeply unpopular president whose purges are broadly disliked and whose attack on regulatory agencies will serve donors, not the public. But reality must not intrude on SOCTUS reasoning.

Sotomayor’s dissent laid out the risks for governing:

Today, the majority replaces 90 years of proven, workable practice with a half-baked theory of executive power that is simultaneously all encompassing yet also subject to necessary but undefined exceptions. The one thing that does appear to be clear going forward is that chaos will follow.

Lets take a simple example: During Trump’s first impeachment, he told executive branch officials not to cooperate with or testify to Congress. Appointees mostly obeyed him, career civil servants mostly did not. Congress and the public clearly benefited from Trump not being able to to restrict the legislative oversight function. The Supreme Court now makes it easier for Trump to lean on executive branch officials, to impose loyalty tests, to block oversight. A passing knowledge of the operations of the Trump administration make this clear. But the Supreme Court deals in idealized abstractions of a benign unitary leader, rather than the dismal realities of the man who appointed one-third of the court.

The consequences of Slaughter will extend in big ways for decades. Steve Vladeck, the esteemed Georgetown scholar of constitutional law put it in epochal terms:

To my mind, Slaughter is the most important separation-of-powers ruling of the twenty-first century—and, by far, the most important decision of the current term. It embraces a remarkably strong form of the unitary executive theory. It runs roughshod over a heck of a lot of sophisticated, persuasive scholarship arguing that Founding-era understandings were far more nuanced and complicated about the sharing of power across the branches. It doesn’t distinguish inferior officers, civil servants, or administrative adjudicators; it merely asserts that it isn’t resolving the constitutionality of protections for those executive branch employees…It makes all kinds of absolutist claims without even trying to persuade readers that the simultaneous carve-out for the Federal Reserve adopted in Cook is somehow consistent with that absolutism. And it does all of this at the exact moment in American history in which the most troubling implications of the unitary executive theory have never been more visible or immediate.

Justice Gorsuch voted for the outcome but at least acknowledged that it served to empower the President with delegated legislative power: “Open-ended delegations of legislative power have not gone away; now they will just be exercised by agency officials who answer to the President.” But Congress no longer gets to control how its delegations of power are used. Now, only a partisan court can do so, with little expectation that their standards will not adjust when a Democrat is back in power.

My fear is that Slaughter also lays the basis for a deeper assault on the civil service. The logic for the decision — that senior officials who employ executive power must be removable by the President — could easily extend to other public servants beyond the heads of independent agencies, including senior civil servants.

In her dissent, Justice Sotomayor noted this risk:

The Government, at least, has the candor not to deny that the “logic” of its position “extends to inferior officers” and, perhaps, career civil servants, too….The majority, however, at best consigns these issues to years of future uncertainty and at worst risks the end of the employment protections that apply to members of the civil service.

The Trump administration saw Slaughter as one block in its case to build an imperial presidency, but it is not done. It is surely the case that Slaughter will be essential to extending that project (see future cases around civil servant firings, or Schedule F employees, or Reductions in Force).

Going deeper on Slaughter:

Can We Still Govern? has been anticipating the fall of Humphrey’s Executor precedent that stopped Presidents from removing independent agency heads. Here are five prior pieces that put the decision in a broader context.

In May of 2025, when the courts blocked the reinstatement of independent agency officials fired by Trump I wrote about what was at stake:

A question I’ve gotten from reporters is how long it will take the public sector to recover from the damage Trump has done. There is no easy answer to this, but I highlight one variable that will matter a lot: how much the Supreme Court embraces unitary executive theory (i.e., the idea that the President has king-like powers).

Why does this matter? A maximalist interpretation of the unitary executive theory holds that almost any Congressional (or judicial) constraints on presidential power are unconstitutional. In more specific terms, it would hold that the civil service system itself is unconstitutional. If the court adopts that reasoning, then it becomes very hard to rebuild state capacity.

Because with unitary executive theory, there is no actor that can make credible long-term commitments to public servants.

With unitary executive theory, Congress cannot write robust new legislation that modernizes the civil service and stops politicization. A President could just ignore it. Even if Trump leaves office, and a new President looks to restore nonpartisan competence, their promises are only good for four or eight years before another President can come in and rip up the terms of their employment. And over time, why would even a good government President invest effort in restoring capacity if their successor can undermine it?

Unitary executive theory is a constitutional theory that would be largely unrecognizable to Founding Fathers who feared an executive who acted like a King. Where did it come from? John Roberts was a young Reagan appointee when he and others in the Republican/Federalist Society legal firmament engaged with unitary executive theory in battles over civil rights, writes political scientist John Dearborn. In some respects, his decision with Slaughter closes the circle on his professional journey, from a servant of executive authority, to an enabler of it.

President Trump’s war on the civil rights bureaucracy may be an escalation, but it has been decades in the making. Civil rights agencies have always been in the crosshairs of the conservative push for a president to wield “all of the executive power.”

John Roberts extensively quoted former Chief Justice Taft’s opinion in Myers in the Slaughter decision. Andrea Scoseria Katz, who studies administrative law, points out that Roberts gets Taft wrong in some crucial ways. Far from being a fan of the type of partisan administration Roberts is unleashing, Taft wanted fewer appointees, and more civil servants.

In light of Myers, these thoughts on appointment are surprising. So, too, are his views on oversight and removal. In reality, President Taft was no hatchet man. He fired cautiously and always in compliance with statutes. Where a statute required “good cause” for removal, as for a customs board, Taft provided notice, held a hearing, and submitted evidence that the statutory predicates for removal had been met. Ironically, the statute Myers later invalidated for allowing the Senate to interfere with removals, the Tenure of Office Act of 1876, was one Taft scrupulously adhered to as president, yielding on proposed removals where the Senate refused to back them.

As it turns out, Taft did not actually run his government as a top-down, command-and-control operation where he served as CEO. More to the point he disliked the aspects of unitary executive as the Trump administration has pursued them and which the Roberts Court relies on Myers to enable: a highly politicized administration that weakens the civil service, firing employees without any demonstration of cause.

Anticipating the Slaughter decision, I lay out how the Court already green lit the assault on the civil service via the shadow docket, such as barring the reinstatement of Slaughter and a senior Merit Systems Protection Board decision:

It is, in the end, not just Trump’s politicization of the federal government; the Republican majority on the Supreme Court are co-owners of this project. John Roberts, who frets and worries about the court as institution, is a willing co-author on the attack on other institutions. The Court’s complicity in the assault on public institutions gives them no justification to demand the protection of their own.

In the Cook case, Roberts decided that Trump’s ability to fire independent agency leaders held one fairly glaring exception, which was the Federal Reserve. In this one instance, Roberts showed he could toss aside unitary executive theory abstractions and deal with the practical politics of protecting the Fed when he needed to. Apparently, the Fed, and only the Fed needs independence to function as an agency.

The inconsistencies between the Cook and Slaughter decisions led to some obvious jokes about a special 401K exception. David Dayen put it best.

Even if Trump was defeated in this narrow way, Trumpism continues. Bill Pulte, the Trump appointee who targeted the Federal Reserve member Trump fired is now the acting Director of National Intelligence, and firing qualified intelligence officials without cause.

To understand the moment we are in, it is also important to understand her accuser, Bill Pulte. What qualifies Pulte to be in his position, as head of the Federal Housing Finance Agency? He is the heir to a home-building fortune and an-online right-wing troll with millions of followers. He has given large amounts of money to the Trump campaign, including $500,000 to a Trump superpac via a shell company. On that basis, and his enthusiastic advocacy for Trump, he was put in charge of a federal agency.

Pulte has used his position to launch an all-out assault on the Fed, calling for Powell’s removal. Pulte was the chief source of the claim that Powell could and should be fired for cause because of cost overruns on building projects. The fact that Pulte is unqualified for his position, that there are massive conflicts of interest between his personal business and the policies of the Fed does not seem to matter. Pulte uses public resources, including the name of his public office, to promote conspiracy theories and target the Fed.