Slaughtering the Administrative State
The Supreme Court's Cooked reasoning on independent agencies.
On June 29, 2026, the Supreme Court decided two long-anticipated cases: Trump v. Slaughter and Trump v. Cook. These cases, along with the Court’s 2024 decision overruling Chevron v. NRDC, have fundamentally changed the landscape of American administrative law. In this essay, I attempt to make sense of Slaughter and Cook. Put briefly, one cannot make legal sense of the two decisions. The only way to explain the differing results in the two cases is to conclude that the Roberts Court realizes the consistent application of their reasoning would jeopardize the world economy, and make a poorly-rationalized exception to avoid that outcome. I conclude by situating Slaughter and Cook in the broader project of the Roberts Court: reconstitution of the American state.
The demise of independent agencies…
In Slaughter, the Court overruled its 1935 decision in Humphrey’s Executor v. US, which held that Congress could impose limitations on the president’s power to fire leaders of multimember agencies. With Slaughter, the conservative legal movement cashed in on a decades-old political project to situate discretion solely within the President themselves. The outcome of Slaughter was foreordained. The Court laid the groundwork for overruling Humphrey’s Executor in Seila Law v. CFPB in 2020. There, the Court limited Humphrey’s to its facts, i.e., Congress could only impose so-called “for cause” removal restrictions on multimember agencies such as the Federal Trade Commission or National Labor Relations Board.
Humphrey’s Executor has been out of favor with the legal and political right for decades because the case allowed for regulation based on “inherently optimistic” ideas of good government and political neutrality. This view came in for criticism, both from the right and left by the mid-twentieth century. Progressives such as Ralph Nader criticized agencies for allowing themselves to be “captured,” while conservatives began formulating constitutional arguments to rein in the now-vast federal administrative state. One such argument was the unitary executive theory (UET).
Slaughter is a ringing endorsement of the UET and, consequently, a dismissal of the reasoning in Humphrey’s Executor. In that case, the Court held that the FTC exercised quasi-legislative and quasi-judicial, rather than executive, power. For example, the FTC might promulgate rules governing unfair trade practices (quasi-legislative) then charge and adjudicate alleged violations of those rules (quasi-legislative and judicial). Conservatives have consistently derided the reasoning of Humphrey’s Executor as “illogical,” and Roberts echoes those criticisms in his majority opinion. This despite important historical work by Beau Baumann and Jed Shugerman demonstrating that the rationale of Humphrey’s Executor has an historical pedigree. Relying on Myers v. U.S. from 1926, the majority holds that the FTC exercises executive power and must be subject to the whims of the President alone. Because the FTC commissioners wield executive power, the removal restrictions violate the separation of powers.
The unitary executive has now been written into the Constitution. After Slaughter, Congress can no longer protect officials from removal if they exercise—in the Court’s determination—executive power. According to Roberts, Congress may create an independent agency “to assist it with its functions,” but it may not “foist” such agencies on the President. The problem is that Roberts expressly declines to define “executive power.” As a practical matter, this means that the Court will be the final arbiter of what Congress may or may not do under the Constitution. This is a long running theme of the Roberts Court’s jurisprudence.
…Except the Federal Reserve
For all the grand rhetorical flourishes of Slaughter, the Court stopped short of applying the UET to the Federal Reserve. Trump v. Cook arose out of Donald Trump’s attempt to fire Lisa Cook, a member of the Federal Reserve Board of Governors. Trump attempted to fire Cook for cause, citing alleged mortgage fraud. Members of the Board of Governors are protected by for-cause removal restrictions. By citing the alleged fraud, President Trump was attempting to fire Cook for cause, i.e., he questioned her integrity.
The crux of the dispute centers around the legal definition of “cause.” The Trump Administration argued that the term encompasses any concern about an official’s “conduct, ability, fitness, or competence.” Once the president makes a determination about, for example, fitness, his decision to fire someone is unreviewable in federal court. Cook argued that “cause” meant only inefficiency, neglect of duty, or malfeasance in office, or ineligibility to hold office as an initial matter.
The majority opinion disclaims both arguments, and similar to Slaughter, declines to define “cause.” It does, however, agree with the lower court that Cook was entitled to notice and an opportunity to be heard before she was fired.
But what about Slaughter? After all, the Federal Reserve is a multimember body whose leadership is insulated from at-will removal by the President. The majority relies on “the Federal Reserve’s unique historical status and role” to distinguish it from, say, the FTC. For Roberts and the majority, the First and Second Banks of the United States in the 18th and 19th centuries give the Fed an historical pedigree that justifies its independence. But as Lev Menand has shown, the historical analogy is flawed because the Banks of the United States in the early republic were not overseen by a federal agency. Rather, these Banks were overseen by private shareholders who did not wield any federal authority. Today, the Federal Reserve operates as a “central bank” in the sense that it is responsible for, among other things, monetary policy. But the power to regulate the money supply is diffused among smaller Federal Reserve Banks, who are overseen by the Federal Reserve’s Board of Governors.
I will not dwell on the granular historical details here. I encourage readers to read Menand’s article for a comprehensive history. If the historical analogue is flawed, then the only reason for the inconsistent results in Slaughter and Cook is the policy implications if the former case applied to the latter. It appears that the Roberts Court is dedicated to “neutrally” interpreting the Constitution on insofar as it does not jeopardize the wellbeing of the world economy (and the Justices’ wallets).
Reconstituting the administrative state
Slaughter and Cook represent significant, though perhaps not final, steps in a reconstitution of the administrative state overseen by a President with powers that exceed those of the British monarchy. Most importantly, Congress is left with few tools to effectively check aggressive uses of presidential power. The First Branch may no longer insulate the agencies it creates from presidential influence. Since 1983, Congress has been unable to veto presidential exercises of statutory authority. As of 2024, Congress cannot subject presidents to criminal accountability for abuses of authority. Finally, Congress must conform to judicially-imposed standards when they write statutes.
In other words, reconstitution of the administrative state is part and parcel with the defanging of Congress. For all the valid criticism of the Legislative Branch, it has been left with severely curbed constitutional powers, and that curbing has come largely from the Supreme Court.
The conservative legal movement, with roots in libertarian notions of the role of government regulation, has successfully cashed in on the constitutional arguments articulated in the Reagan Administration. The irony is that Republican presidents have no qualms about overweening government authority so long as it conforms to their ideological commitments.
Featured image is FDR and William Humphrey
