The Administrative State After Trump v. Slaughter

Summary

Penn Program on Regulation director Cary Coglianese opened the panel by reviewing the history of presidential removal authority. The Constitution specifies how principal officers are appointed but does not explicitly establish a general removal process. In Myers v. United States (1926), the Supreme Court recognized presidential authority to remove executive officers. In Humphrey’s Executor (1935), it upheld statutory “good-cause” protections for certain agency commissioners, distinguishing bodies such as the Federal Trade Commission from purely executive offices. Later decisions limited those protections for officials subject to multiple layers of protection and for heads of certain single-director agencies.

The panel focused on the Supreme Court’s 6–3 decision in Trump v. Slaughter, which overruled Humphrey’s Executor. The Court held that Congress cannot shield agency leaders exercising executive power from presidential removal. The panel also discussed Trump v. Cook, decided the same day, in which the Court allowed statutory removal protections for Federal Reserve governors to remain in force.

The Court’s reasoning and historical foundations

• Christopher Yoo supported the result in Slaughter. He said the majority’s reasoning followed a long-standing line of arguments based on the Constitution’s vesting of executive power in the president, early congressional practice, and changes in the powers exercised by modern agencies. He also stressed that removal protections are only one part of agency independence: Congress can use other tools, including agency structure, appointment rules, budgets, oversight, and authority over litigation and adjudication.
• Kate Shaw argued that the decision wrongly concentrates power in the president and weakens checks created by Congress. She disputed the view that the Constitution has always required presidential control over every executive official, pointing to early federal statutes and historical practices that allowed some government functions to be carried out by officials not subject to at-will presidential removal. She described Slaughter as a major break with a long-running constitutional settlement that balanced presidential control with other institutional values.
• Shaw and others also questioned the Court’s treatment of the Federal Reserve.
  • Don Moynihan said the apparent exception for the Fed undermines the coherence of Slaughter: if insulation from political pressure is justified for monetary policy, similar concerns could apply in other areas.
  • Brian Feinstein added that the Fed performs regulatory and supervisory functions as well as monetary policy. He noted that political pressure can create long-term risks in fields such as housing and nuclear regulation, too.

Likely effects on agencies and the public

Feinstein characterized the decision as a “medium” rather than an earthquake-sized change. He expected it to pull some agencies closer to the White House and increase regulatory uncertainty, but noted that many bodies commonly called independent—including the SEC, FCC, and FEC—do not have the statutory removal protections directly affected by the ruling. He also argued that some agencies with such protections were not especially insulated from politics or especially technocratic even before the decision. Still, he identified the FTC, National Labor Relations Board, and Merit Systems Protection Board as important agencies whose functions may be affected.

Moynihan viewed the stakes as potentially much larger. He warned that presidential removals can deprive multi-member commissions of the quorum needed to act, and that the loss of meaningful independence at the Merit Systems Protection Board could weaken protections for federal employees. He said the administration may treat Slaughter as support for a broader theory of presidential control, potentially extending beyond agency heads to much of the civil service.

Yoo cautioned against equating removal protection with complete agency independence. Even before Slaughter, agency leaders remained subject to congressional oversight and presidential influence. He cited the FCC’s net-neutrality debate as an example of how a president’s public position can influence an agency even when its chair claims independence.

How far might the ruling reach?

The panel considered whether the decision could threaten protections for administrative law judges, judges on Article I courts, inspectors general, whistleblowers, and civil servants.

• Shaw said the Court left several questions unresolved. She thought administrative law judges might be distinguishable where their work can be reviewed by a principal officer, but warned that the opinion’s logic raises serious questions about protections for the federal workforce.
• Moynihan noted that the administration has increasingly framed civil-service removal disputes in constitutional terms, rather than relying only on statutes, and may use Slaughter to press those claims further.
• Feinstein said most qualifications for agency heads—such as requirements for relevant expertise—may survive, but he was less confident about statutory partisan-balance requirements for commissions. He also suggested that Congress could reinforce agency structures through advisory bodies, internal offices, and quorum rules, though none would fully guarantee autonomy.
• Shaw said requirements governing inspectors general, including qualifications and procedures for notifying Congress before removal, may survive, but the issue remains unsettled.

The panel also discussed the possibility that treaties or international commitments could encourage operational independence in some regulatory settings. Yoo observed that governments sometimes voluntarily accept constraints to build confidence among international partners and investors, though this would not necessarily impose a direct domestic limit on presidential authority.

Broader implications

In their closing remarks, the panelists placed Slaughter alongside other changes in administrative law, including the overruling of Chevron deference and the development of the major questions doctrine.

Feinstein argued that the Court’s recent decisions collectively reduce agency autonomy and shift power to other actors, while questioning whether greater presidential control will make agencies seem more legitimate to the public. Moynihan emphasized the value of stability, expertise, and competence in public administration, and warned that a strong version of the unitary executive theory could threaten both democratic safeguards and government capacity. Shaw said the Court is upending settled arrangements and shifting power not only to the president but also to itself. Yoo described the current period as a broader recalibration of the administrative state, whose eventual shape will depend on the actions of Congress, presidents, courts, and states.

Presenters and contributors

• Cary Coglianese — Moderator; director of the Penn Program on Regulation
• Brian Feinstein — Associate Professor of Legal Studies and Business Ethics, Wharton School
• Don Moynihan — J. Ira and Nicki Harris Family Professor of Public Policy, University of Michigan
• Kate Shaw — Professor of Law, Penn Carey Law
• Christopher Yoo — Imasogie Professor in Law and Technology, Professor of Communication, and Professor of Computer and Information Science, University of Pennsylvania