On April 10, Chief Justice John Roberts placed a case on theSupreme Court’s docket that could potentially entrench far more devastating andirremediable damage to the global economy than Trump’s tariffs; eviscerateAmerican democracy more than the president’s maneuvers to crush critics inacademia, law, and business; and undermine rule-of-law governance more than the court’s widely covered April 7 procedural finesse of Trump officials’ defianceof district judges’ orders to halt unlawful deportations. The potential forcatastrophe cannot be dismissed as hysterical fearmongering. It will indeed cometo pass, if the court adheres to the letter of the so-called “unitaryexecutive” theory long treasured by right-wing legal academics and pundits,repeated reflexively by hard-line conservative judges, and recently given nodsof approval by various justices on the Supreme Court’s right—to justify the claimthat the Constitution bars Congress from prescribing that presidents can removeheads of multimember agencies only “for cause.”
Dating back well over a century, courts have interpretedthat bar to be so high that presidents refrain from even trying to terminateofficeholders enjoying “for-cause” removal protection. Ideological legalconservatives have long condemned this brake on presidential power because,they insist, by “vesting” the “executive power” in “a president,” theConstitution gave the president “allof the executive power … not someof it,” in thewordsoftheir late icon, Justice Antonin Scalia.
Scalia’s reasoning and rhetoric have driven some of the Roberts court’s most significant decisions. However, despite this seemingly implacable momentum,reasons exist to expect that a majority of the court, including at least two ofthe six conservative justices, can be persuaded, however regretfully, to putideology aside when they reach the merits of the case the chief justice justdocketed.
The case in question consolidates two litigationschallenging Trump’s firing of commissioners of, respectively, the NationalLabor Relations Board, or NLRB (Wilcox v. Trump), and the Merit SystemsProtection Board, or MSPB (Harris v. [Treasury Secretary Scott] Bessent).Both of the terminated officials are covered by statutory for-cause-onlyremoval safeguards. Trump and his legal minions acknowledge that there was nobasis for removing either official in the requirements specified in the applicablestatutes; both officials had exemplary performance records, which plainly failedto meet the identical criteria in both statutes that permit removal only for“inefficiency, neglect, or malfeasance.”
Nonetheless, Trump’s Justice Department lawyers maintainthat he can ignore these strictures because the Constitution bars Congressfrom placing any limits on his ability to fire agency heads for any reason orno reason. “The President,” Solicitor General John Sauer told the justices in hisbrief, “should not be forced to delegate his executive power to agency headswho are demonstrably at odds with the Administration’s policy objectives for asingle day.”
In 2020, when conservative justices comprised a five-justicemajority, the court decided 5–4, in Seila Law v CFPB,that theConstitution mandated at-will status for single-headed executive agencies—namely, in that case, the Consumer Financial Protection Bureau. But thedecision expressly declined to extend this mandate to multimember “independent”agencies, such as the NLRB and the MSPB. The justices can no longer dodge thatfraught question.
On April 7, a 7–4 majority of the Court of Appeals for theDistrict of Columbia Circuit rejected the Trump administration’s claim. Themajority (consisting of all seven of the court’s judges appointed by Democraticpresidents) ruled that a 1935 Supreme Court decision upholding for-causeremoval protections for heads of multimember agencies remained bindingprecedent, never mind that it has fallen out of favor with theirRepublican-appointed colleagues and other legal luminaries on the right. The Courtof Appeals majority ordered the reinstatement of both of the agency boardmembers Trump had fired, pending the outcome of the litigation.
Two days later, Solicitor General Sauer filed an emergencypetition in the Supreme Court seeking reversal of the reinstatement order. ChiefJustice Roberts’s warp-speed grant of Sauer’s petition, three hours after it wasfiled, was interpretedas merely giving the justices time to mull the weighty issues at stake, notpresaging the result after they complete that process. Sauer asked the court to hear and decide thecase in the current term, which expires at the end of June.
Why might a critical mass of the Supreme Court’sconservative supermajority shrink from letting their ideology propel them tobroaden untrammeled presidential firing authority to multiheaded agencies? Twopotential reasons spring to mind: the real-world consequences of such anextension and the doctrinal and empirical holes in the undergirding unitaryexecutive theory that scholars have exposed since Justice Antonin Scalia firstexpounded the current version of that concept in 1988.
Of the two, the calamitous-consequences barrier, while asyet only fleetingly acknowledged by the justices, is no doubt the mostdaunting. In particular, two words give that prospect intimidating force. Thosewords are the Fed. As legal scholarStephen Vladeck recently wrote,“The not-very-well-kept secret is that the justices are (understandably) waryabout handing down a ruling that would allow any President, and perhaps thisone in particular, to exercise direct control over U.S. monetary policy bycontrolling who sits on the Federal Reserve Board.” Since the original Framers’establishment of the first and, especially, the second Bank of the UnitedStates, a broad and bipartisan consensus has hardened, in the U.S. as well asevery industrialized nation, that an independent central bank with far-reachingpowers is essential to maintaining monetary stability and sustaining economicgrowth.
Conservative legal experts with financial regulatoryexpertise are well aware of the threat posed by subjecting the Fed to totalpresidential control. Peter Wallison of the American Enterprise Institute,otherwise a champion of judicially enforced controls on the “administrativestate,” nevertheless wrote,on February 28 of this year, “Under no circumstances would it make sense aspublic policy for the president to have the power to control the Fed.” To date,no one has come up with a principled basis for distinguishing multimemberagencies like the NLRB or the Federal Trade Commission, or FTC,—whichconservatives would love to rein in—from the Fed, which they, along with thecorporate sectors with which they are often allied, fervently believe requiresindependence. This poses a dilemma, since, as Wallison observed, “If the Courtconcludes that the president can control a multi-headed independent agency,there will be no Court-approved avenue that clearly makes the Fed immune frompresidential control.”
Wallison’s acknowledgment of untoward real-worldconsequences is not the only weakness in conservatives’ support for unitaryexecutive theory. In 2018, libertarian law professor Ilya Somin announced that “unitaryexecutive theory is one of the few issues on which I have changed my mindduring the Trump era,” a turnabout he confirmedin January of this year. Somin’s switch appeared on the widely readconservative-libertarian legal blog The Volokh Conspiracy, which hasposted other broadsides against the theory.
Apart from the Fed, the Federal Communications Commission,or FCC, is another independent agency no one—right, left, or center—should wantto be subject to unchecked presidential control. There would seem to be no needto elaborate the existential danger to democracy inherent in giving the WhiteHouse, especially but by no means exclusively this White House, total controlof the FCC’s authority to award or withdraw broadcast licenses from owners of,say, The Washington Post, The New York Times, or Rupert Murdoch’smedia empire.
Perhaps less dramatic, but hardly unimportant, are the virtuesof independence for other such agencies. For example, take the Federal Trade Commission. The FTC’s antitrustauthority is often dismissed as duplicative of the Department of Justice’sAntitrust Division. But an unscrupulous president can readily use DOJ’santitrust powers to bully corporations big and small into toeing his or herline—as indeed Trump was widely perceived to have done, or attempted, in hisfirst term. Now, in his second term, the willingness to abuse power in thismanner is something that Attorney General Pam Bondi has all but overtly proclaimeda linchpin for personnel evaluation.
There are unique reasons why the independence of the Merit Systems Protection Board, directly at stake in the pending SupremeCourt case, is essential. Independence from White House control is central to the overridingobjective of the 1883 Pendleton Act, as refined by the 1978 Civil ServiceReform Act, to replace the corruption-saturated “spoils system” of the nineteenthcentury, which culminated in theassassination of President James Garfield by Charles Guiteau. Thereafter,the corrupt favor-trading regime was replaced by a merit-based professionalcivil service.
Since 1988, Justice Scalia and his disciples haveconsistently justified theunitary executivetheory, as a matter of law, on originalist grounds—specifically, on the claim that the Framers so understood the Constitution, eventhough the Constitution’s text itself prescribes nothing whatsoever to limitCongress’s authority to regulate the mode of removing agency heads. Unitaryexecutive proponents have rested their legal case on the contention that unfetteredfiring authority was implicit in Article 2’s “vesting” of federal“executive” power in the president.
Given the theory’s lack of actual textual basis, unitaryexecutive proponents needed to show that their understanding was borne out by contemporaneousstatements and practice. For a considerable time, this claim was widely acceptedas true or at worst plausible. But as unitary executive theory took hold on the right,that narrative began to be challengedby (largely liberal) scholars. Over the years, more and more founding-eraactions inconsistent with the theory came to light. Recently, research has irrefutably exposed thenotion of a founding-era “consensus” around unitary executive theory as simplybad law-office history—despite its endorsement in opinions of the nation’shighest court.
To take one example, sufficiently persuasive on its own: theFirst and Second banks of the United States, vastly powerful instrumentalities resemblingthe twentieth-century Fed, especially the Second bank. As D.C. Circuit JudgePatricia Millett wrote on April 6, when the case was before her court, “As forthe First and Second Banks of the United States, Congress provided thePresident no removal authority over members of the First Bank, and gave thePresident control over only five out of twenty-five members of the Second Bank.”Significantly, legislation creating the First Bank, enacted in 1791, wascrafted by Treasury Secretary Alexander Hamilton—famously, among all the Founding Fathers, the most ardent champion of an “energetic” president. TheSecond Bank legislation was signed into law in 1816 by President James Madison.Recent scholarship has broughtto light other founding-era legislation that extensively circumscribedpresidential power to fire senior executive officers of federalinstrumentalities, including officials equivalent to modern agency heads.
In short, we now know that contemporaneous practice demonstratedthe opposite of unitary executive proponents’ claim that there was anoriginal consensus understanding that Article 2 implicitly “vested” presidentswith full authority over the entire executive branch, specifically over removalof all agency heads. With their contemporaneous-practice rationale in tatters, thelegal case for extending unitary executive theory to junk over two centuries offederal institutional architecture simply falls apart.
Moreover, the constitutional text that does bear on theissue augurs emphatically in support of the flexibility Congresses andpresidents from the founding era forward to the present have shown in craftinginstitutional arrangements like the central banks, the merit-based civilservice system, and the National Labor Relations Act’s machinery for settlinglabor disputes through legal procedures rather than the industrial warfarerampant prior to passage of the 1936 National Labor Relations Act. That text isthe “necessary and proper clause” of Article 1.
This clause confers on Congress the power “To make allLaws which shall be necessary and proper for carrying into Execution theforegoing [enumerated] Powers [specifically assigned to Congress], and allother Powers vested by this Constitution in the Government of the UnitedStates, or in any Department or Officer thereof.”(Emphasis mine.)Famously, that text was (contemporaneously) interpreted by Chief Justice JohnMarshall to empower future generations “to provide for exigencies which, ifforeseen at all, must have been seen dimly, and which can be best provided foras they occur.” As one of today’s mostwidely respected center-right legal authorities, former Harvard Law dean andcurrent University Provost John Manning, has explained,this clause precludes “establish[ing] a constitutional violation simply byshowing that Congress has constrained” the way executive power “isimplemented”; that is, per Manning, “exactly what the Clause gives Congress thepower to do.”
In relevant opinions and oral arguments, the conservativejustices have evinced that they feel tugged in opposite directions—on the onehand, by the long-held ideological staple that complete presidential control ofthe executive power is constitutionally compelled and, on the other, by theirapparent recognition of the potentially catastrophic consequences of followingthat line to its logical end point.
In their 2020 decision nixing independence for the CFPB,Chief Justice Roberts repeated Scalia’s bromide that “the executive power—allof it—is vested in a President.” On the other hand, Roberts stressed that a 90-year-oldprecedent “held that expert agencies [were] led by a group of principalofficers removable … only for good cause.” (Emphasis is in the original.) He also observed that the single-directorarrangement enacted by Congress “differed from the proposals of [then]Professor [Elizabeth] Warren and the Obama administration,” for creating “a traditional independent agency headed by a multimember board orcommission.”
For tea-leaf readers, of particular interest is potentialswing justice Brett Kavanaugh’s lengthy dissenting opinionwhen he was on the Court of Appeals for the D.C. Circuit, regarding anidentical 2018 challenge to the validity of the CFPB, just before his elevationto the Supreme Court. On that occasion, Kavanaughdid not merely argue that multimember independent agencies could bedistinguished from their single-director cousins; he spelled out positiveattributes of the former genre.
He stressed, “Because of their massive power and theabsence of Presidential supervision and direction, [single-director] independentagencies pose a significant threat to [both] individual liberty and to theconstitutional system of separation of powers and checks and balances [becauseof the director’s] authority to take action on one’s own, subject to no check—[unlike] any single commissioner or board member … or any other official inthe U.S. government, other than the president.”
He also noted that not only “then-Professor and now-SenatorElizabeth Warren,” as well as President Obama’s administration, butRepresentative Barney Frank and Democratic leader Nancy Pelosi also backed amultimember format for the CFPB. He detailed how presidents retainconsiderable authority to shape the policy direction of multimember independentagencies because, typically, they can replace the agency chairperson and designatea replacement from among the members, with no requirement to show cause. On theother hand, Kavanaugh referenced another D.C. Circuit opinion of his noting“tension” between the Supreme Court’s 90-year-old precedent upholdingindependent multimember agencies and more recent decisions, especially the CFPBcase, Seila Law v. CFPB.
What all this mandates for liberal advocates is that theymust mobilize a robust and broad coalition that includes conservatives,economists, business and especially financial leaders, as well as liberal constituenciesclose to the NLRB and the MSPB, to hammer home to the justices that it is timeto shelve an ideological credo unfaithful to the text of the Constitution orthe design and actions of its Framers, out of sync with over two centuries ofentrenched—and successful—tradition, and, most of all, a real threat to economicstability and growth and democratic governance.
