A Revolutionary Decision Ending Agency Independence
Clinton Vince Chairs Dentons’ U.S. Energy Practice and co-chairs their Global Transportation and Infrastructure Sector.
Simon Steel is a Partner at Dentons Litigation, Energy and Federal Regulation Practices and a former Supreme Court Clerk.
On June 29, in Trump v. Slaughter, on a party-line six to three vote, the Supreme Court held that President Trump was entitled to fire the two Democratic members of the Federal Trade Commission for any reason or no reason at all.
The Court ruled that the statutory for-cause restriction on the President’s power to remove commissioners — a standard provision included in many regulatory statutes since 1887 — is unconstitutional because it conflicts with the Constitution’s vesting of all executive power in the President. In doing so, the Court overruled its own unanimous 1935 decision in Humphrey’s Executor. Slaughter means that the age of independent federal regulatory agencies is essentially dead, and Donald Trump now wields more power than any President in history.
Chief Justice Roberts’ majority opinion embodies the “unitary executive theory” championed by the Federalist Society and modern conservative legal scholars (including Roberts and fellow former Republican Administration lawyers, Justices Alito and Kavanaugh): to ensure democratic accountability, the Constitution requires unfettered Presidential control over all exercises of executive power and permits no “headless fourth branch of government.”