Last week, the Supreme Court overturned its 91-year-old precedent – in Trump v. Slaughter – holding by a 6-3 vote that Congress can’t restrict the President’s ability to remove members of independent agencies like the FTC. Here are four things to know:
1. Presidential Removal Power Expanded: The decision embraces the ‘unitary executive theory,’ giving the President broader authority to remove executive branch officials without needing to show cause.
2. Divide Between Majority and Dissent: The majority argued presidential control is necessary for democratic accountability, while the dissent warned the ruling significantly expands presidential power and weakens agency independence. Chief Justice John Roberts wrote in the opinion that “the President must have the assistance of officers he can trust.
Although it is up to the Senate to decide whether to confirm those with whom the President would prefer to work, 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.”
3. Decision Stems from FTC Commissioner’s Removal: The case arose after President Trump removed FTC Commissioner Rebecca Slaughter, who challenged her dismissal under the protections recognized in Humphrey’s Executor v. United States. The ruling dismantles a constitutional framework established in 1935 that had protected independent agencies from direct political control for nearly a century.
4. Impact on the SEC: As an independent agency – although some have argued over the years that it’s not – the SEC is impacted by this new decision. But in the near term, there currently are only three Republican Commissioners – and no Democrat Commissioners – so it would be unlikely that a President would use this new authority to remove a Commissioner from the SEC anytime soon.
In terms of whether the President is required to replace departing Commissioner Hester Peirce with a Democrat, the answer is ‘no.’ Rather, the SEC’s enabling statute doesn’t require partisan parity. It requires only that no more than three of the five Commissioners belong to the same political party. In practice, presidents generally nominate Commissioners to produce a 3–2 split, but that is a matter of custom and politics rather than a legal mandate.
The Slaughter decision expanding the President’s removal authority doesn’t itself eliminate the SEC’s partisan-balance requirement. The removal question (whether Commissioners can be fired) and the appointment question (who may be appointed) are distinct. That said, some have argued that bipartisan composition requirements may themselves be vulnerable under the unitary executive theory.
Authored by
Broc Romanek