The Demise of Independent Agencies in Government
An ongoing debate over the President's power to remove executive officers from their position is a constitutional and integral conflict that has existed since the early days of American democracy. The text of the Constitution, specifically Article II, contains a “vesting” clause that grants the President the authority to enforce laws, oversee foreign affairs, and virtually all powers that fulfill their role as Commander-in-Chief. This serves as the foundation for the entire Executive Branch, posing significant discrepancies because of ambiguity and imprecise language. In other words, the scope of the President's power is somewhat questionable and open to many interpretations based on the usage of "herein granted” in Article I’s declaration of the powers of Congress, among other vague grants in both Articles that present contradictions. Unlike Article I, which limits the power of Congress through its phrasing, Article II does not specifically state every executive power; rather, it broadly implies that the President’s powers correlate to his responsibilities and position.
The current national position in terms of this debate is shown in the recent and controversial Supreme Court case Trump v. Slaughter in 2025. Concerning President Donald Trump’s “causeless” removal of FTC Commissioner Rebecca Kelly Slaughter — effectively challenging the precedent set by a 1935 Supreme Court case, Humphrey's Executor v. United States. In essence, this case protects independent agency officials from being fired easily, because Congress could shield FTC Commissioners from removal (because their roles weren’t purely executive, rather quasi-judicial/legislative). However, Trump v. Slaughter, which challenges Humphrey's Executor v. United States, is defended by the current presidential administration because the original precedent is outdated and infringes on presidential power. In addition, when placed aside the “Take Care Clause,” the FTC’s argument appears fundamentally flawed. This is because the Take Care Clause states that the President must “take care that laws be faithfully executed,” and any perceived inefficiency or neglect of duty from an agency official could cause unfaithful execution.
The first instance of debate regarding the removal of power was exhibited via the “Decision of 1789,” with the very first United States Congress discussing the establishment of the Department of Foreign Affairs (later the Department of State). This early constitutional interpretation of Article II responded to the question of whether the statute that created the department should explicitly say that the Secretary of Foreign Affairs was removable only by the President. The President at the time, James Madison, promoted that the power to remove the Secretary was intrinsic to his executive authority — later known as the “Unitary Executive Theory.” Many others argued that Congress should have at least some say in possible removal; the outcome was that Congress passed acts with vague and ambiguous language, never specifically granting the President removal power but rather accounting for what would occur if an officer was removed by him.
This specific phrasing later had its meaning adopted by different professionals, making way for divergent definitions. A more traditional view, championed by scholars and judges (like William Howard Taft, the judge for Myers v. United States in 1926), comprehended this phrasing as the legislative branch’s understanding that the President was automatically vested with removal power. Alternative and more revisionist views, featuring modern scholars like Jed Shugerman, argued that there was no consensus on the case. In other words, the Supreme Court decision in 1926 with Myers v. United States made way for the definitive defense of the Decision of 1789, forming the cornerstone of the Unitary Executive Theory.
The Unitary Executive Theory plays a significant role in activity in the Executive Branch, as the outline it poses gives the President virtually all control of the officials in this branch. It stems from the aforementioned Article II of the Constitution, which is often cited by supporters of the theory, specifically the vesting clause: “The executive Power shall be vested in a President..." Another principle that upholds the unilateral presidential decision to remove an agency official is that the “quasi” distinction (meaning some officials don’t have solely executive roles) may be irrelevant in these cases. To elaborate, the decision made in Humphrey's Executor is the primary ideal protecting many agency officials from easy termination, meaning that the Commissioner’s defense is somewhat lacking. Beyond the idea that Humphrey's Executor has old-fashioned interpretations, the role of the FTC itself has largely developed and now is responsible for massive regulatory and enforcement-related actions that cannot be contained in the quasi-definition. Therefore, if an agency happens to utilize the "coercive power of the state,” the President (in accordance with the Unitary Executive Theory) should be accountable.
The massive evolution of the FTC has shown through its initial creation in 1935 to its contributions to government now, emerging from a small agency with minimal power to a powerful law-enforcement body. Humphrey’s Executor in the same year upheld the agency’s independence, based on the aforementioned quasi-legislative/judicial role(s). In its initial years, the FTC was mainly called upon for investigation of potentially unfair business practices and issuing non-binding recommendations if they were found. This comparatively small starting role would be amended and appended to in the years following, with acts like the Wheeler-Lea Act of 1938, expanding the agency’s mandate so that it would entail prohibiting unfair (deceptive) acts/practices. This essentially provided the FTC with direct authority regarding consumer protection and maintaining the stability of the market. In 1975, the Magnuson-Moss Warranty Act was passed, giving the agency further authority to advise trade regulations that would be applicable industry-wide for a given stipulation. In pivotally bolstering the FTC’s rule-making capacities, this was followed by the Hart-Scott-Rodino Antitrust Improvements Act of 1976, which established for the FTC a required premerger notice for corporate enterprises/businesses, giving it the power to block corporate mergers and potential monopolies.
Despite the undoubted development of the FTC into a much more fundamental government agency than its initial role, this argument’s usage in Trump v. Slaughter (and other recent cases involving the FTC) brings forth opposing arguments. A popular opposition to overruling the precedent set in Humphrey's Executor mentions the inevitable chaos that would likely ensue from this action. If the President were granted the liberty of exercising the Unitary Executive Theory whenever he best saw fit, it could arguably apply to every agency official. This would threaten the occupations of officials not only in the FTC but in the SEC and other vital operational bodies for the country, and eventually overturn hundreds (if not thousands) of important agency rulings. In addition, if the idea that the President has sole power over the termination of such a large number of governmental workers is maintained, the integrity of their operation would also be virtually destroyed. As shown through a century’s worth of governmental practices among all the branches, and a core addition to Rebecca Slaughter’s argument in Trump v. Slaughter, Presidents and Congress have consistently agreed that independent agencies like the FTC are permissible. Therefore, essentially violating this core practice would invite market instability and economic chaos almost overnight. However, the modern court does pose an argument that successfully challenges the precedents set by Himprehy’s Executor, and foundational New Deal and historical American practices — and could make way for the largest federal governmental restructure in almost a century.
Bibliography
Cornell Law School. “Unitary Executive Theory (UET).” Accessed December 18th, 2025. https://www.law.cornell.edu
University of Michigan. “Debunking Humphrey’s Executor.” Accessed December 18th, 2025. https://www.gwlr.org
American Antitrust Institute. “A HISTORY OF THE FTC’S BUREAU OF ECONOMICS.” Accessed December 18th, 2025. https://www.antitrustinstitute.org
National Labor Relations Board. “National Labor Relations Board and Federal Trade Commission Forge New Partnership to Protect Workers from Anticompetitive and Unfair Labor Practices.” Accessed December 19th, 2025. https://www.nlrb.gov
NYU Law Review. “THE FEDERAL TRADE COMMISSION ON THE FRONTIER: SUGGESTIONS FOR THE USE OF SECTION.” Accessed December 20th, 2025. https://www.nyulawreview.org
Mercatus Center, George Mason University. “Reforming the Federal Trade Commission.” Accessed December 21st, 2025. https://www.mercatus.org/research