Originally published in The Regulatory Review
For over a century, independent regulatory commissions occupied an odd corner of the administrative state. They write rules with the force of law, and they investigate and enforce these rules, but these independent agencies sat outside the ordinary chain of presidential accountability that governs the rest of the executive branch. On the second-to-last day of its latest term, the U.S. Supreme Court in Trump v. Slaughter changed all that. It overruled its 1935 decision in Humphrey’s Executor v. United States and held that the Federal Trade Commission’s (FTC) for-cause removal protection for its Commissioners violates the Constitution’s separation of powers. Chief Justice John G. Roberts, Jr., writing for a six-justice majority, concluded that any officer who exercises executive power, which the FTC “unquestionably” does, must be removable by the President at will.
The policy consequences of this decision are mixed and potentially troubling, as the dissent, authored by Justice Sonia Sotomayor, and the concurrence by Justice Neil Gorsuch explain. I return to those briefly below. But one positive outcome is that the decision affirms a President’s ability to oversee the regulations of independent agencies, just as he does executive branch agencies.