If that is what \u201cexecutive power\u201d means<\/a> and all \u201cexecutive power\u201d must be \u201ccontrolled by the Chief Executive, in whom such power is vested,\u201d then the prospects for independent judgment in Article I courts looks dim. Such was the analysis Chief Justice William Howard Taft proffered among his dicta in Myers v. United States<\/a>, the 1926 precedent on which Slaughter relies. Even if the President could not legally command the result in a particular case, Chief Justice Taft wrote<\/a> that he \u201cmay consider the decision after its rendition as a reason for removing the officer, on the ground that the discretion regularly entrusted to that officer by statute has not been, on the whole, intelligently or wisely exercised.\u201d<\/p>\n As categorical as Slaughter sounds, the Court complicated matters in Trump v. Cook<\/a>, the Court\u2019s companion exercise in faux-historical legerdemain. Technically, Cook posed<\/a> only the question whether the President was entitled to stay a lower court order keeping Lisa Cook<\/a>, a member of the Board of Governors of the Federal Reserve System, in office while litigation proceeded over whether President Donald J. Trump properly removed her for \u201ccause,\u201d the statutory standard. Yet the majority clearly implied\u2014as Justice Brett Kavanaugh\u2019s concurrence<\/a> said straight out\u2014that the Court approves a \u201clongstanding historical practice and understanding that the Federal Reserve is an independent agency whose Governors enjoy for-cause removal protection consistent with Article II of the Constitution.\u201d Unfortunately, Justice Clarence Thomas\u2019s dissent<\/a> eviscerates that historical account. The Federal Reserve was not designed to be a bank in the tradition of the First and Second Banks of the United States but rather as an independent regulatory body, much like the Interstate Commerce Commission.<\/p>\n Synthesizing Slaughter and Cook, the rule now seems to be that \u201call\u201d executive power must be controlled by the President unless the U.S. Congress invaded that power early enough for the Court to be satisfied that the usurpation is ratified by history. Unfortunately, the Court was simply dismissive in Slaughter regarding evidence of a more general understanding in the early Congresses that agencies could legitimately be set up to render decisions independent of presidential control. One is left with the impression that the Court now identifies a \u201chistorical understanding\u201d with constitutional legitimating force just as Justice Potter Stewart once identified<\/a> pornography: The conservative justices know it when they see it.<\/p>\n But for all the Slaughter majority\u2019s historical sloppiness and jurisprudential misdirection, the opinion\u2019s two gravest sins are its obliviousness to institutional consequence and encouragement of lower courts and executive branch lawyers to flout the law. Ironically, the opinion that sketches the dire practical implications of Slaughter most starkly is the concurrence<\/a> by Justice Neil Gorsuch. The Court, he points<\/a> out, has diminished the independence of independent agencies but not their substantive powers. Congress has given<\/a> agencies \u201ctremendous sway over the Nation\u2019s affairs,\u201d but often \u201cwith hardly any statutory guidance\u201d to limit their policy making. After Slaughter, \u201cthe President can effectively exercise all those powers too.\u201d Indeed, he adds<\/a>:<\/p>\n The whole of the President\u2019s authority also may be greater than the sum of its parts. It would be one thing if today\u2019s decision afforded the White House more control over the airwaves. Or financial markets. Or energy. But Presidents now will enjoy waxing authority over all those areas and more. A business out of favor with the party in control of the White House might be able to stave off an FCC investigation. But can it survive a subsequent FTC rule declaring unlawful one of its longstanding trade practices? What about an in-house adjudication by OSHA? Or a prosecution for a new crime the SEC announces? Not to mention what these now-coordinated powers could do to disfavored individuals who lack the resources needed to fend off such attacks.<\/p>\n Given his libertarian leanings, Justice Gorsuch is most alert to how a corrupt or retributive President might use executive power to punish firms out of favor. He might have added, however, that a President can also use his newfound power to hobble agencies. As I have explained<\/a> elsewhere, a President can eliminate an agency\u2019s bipartisan makeup by simply firing minority commissioners, as President Trump did with the FTC. For agencies that can act only with a statutory quorum, a President can kneecap the agency by reducing its membership below quorum level. Or, as President Trump has actually done<\/a> for the U.S. Election Assistance Commission, a President can paralyze an agency by firing any of its leaders who decline to resign. It is lamentable that a modern-day Court, confronting a document that obligates<\/a> the President to \u201ctake care that the laws be faithfully executed,\u201d would, for all practical purposes, legitimate presidential authority to undermine law execution altogether.<\/p>\n The majority opinion also effectively invites both lower courts and, by implication, executive branch lawyers to flout the law where inconsistent with the jurisprudential vibes of the moment. It is bad enough that the majority pretends<\/a> that Humphrey\u2019s Executor v. United States<\/a>, the unanimous precedent it overrules, is the source of judicial \u201cindeterminacy and unpredictability,\u201d when the cause of that \u201cindeterminacy and unpredictability\u201d is the Roberts Court\u2019s determination since 2010 to hack Humphrey\u2019s Executor limb from limb. The Court scoffs<\/a> that predecessor majorities applied Humphrey\u2019s Executor only once since 1935, but that fact testifies not to the precedent\u2019s insignificance but to the ease with which its clear import has been understood for the last ninety-plus years.<\/p>\n What is worse is that the majority fails to acknowledge that its approach to separation of powers analysis is fundamentally different from the equally serious jurisprudence of an earlier Court. Humphrey\u2019s Executor represents the determination of the 1935 justices to legitimate a sensible institutional check-and-balance against the threat of a too-authoritarian executive empowered by Congress to regulate a modern national economy of unprecedented scope. Its solution was embraced unanimously by nine justices whose legal philosophies spanned a spectrum no narrower than that of the Roberts Court today. Five of those justices had been on the Myers Court, including four in the majority of that case. To reach their conclusion, the justices embraced<\/a> a conception under which presidential control simply did not need to operate in the same way over officials performing functions deemed \u201cquasi-legislative\u201d or \u201cquasi-judicial.\u201d As the scholars cited<\/a> in the dissent of Justice Sonia Sotomayor have established<\/a>:<\/p>\n By the early-19th century, courts \u2026 were using the term \u201c \u2018quasi-judicial\u2019 to describe the duties of specialist officers whose work bore functional and procedural similarities with that of the judiciary\u201d and the term \u201cquasi-legislative\u201d to refer to functions served by \u201c \u2018subordinate agencies\u2019 \u201d tasked with filling in the details left open by general laws.<\/p>\n Such usage echoed<\/a> the observation by President James Madison that \u201ceven executive officers may \u2018partak[e] strongly of the judicial character\u2019 and that such officers raise distinct considerations when it comes to removal.\u201d The Roberts Court\u2019s unwillingness to confront seriously and on its own terms what Humphrey\u2019s Executor managed to accomplish is an act of judicial hubris that will surely spawn imitators.<\/p>\n A perfect example of the mindset we are bound to see more of is an April 1, 2026, opinion<\/a> from the Department of Justice\u2019s Office of Legal Counsel (OLC) purporting to find the 1978 Presidential Records Act<\/a> unconstitutional. That statute created<\/a> protocols for the management of presidential records that essentially generalized from a system that Congress had established for preserving the records of President Richard M. Nixon in the wake of Watergate, the 1974 Presidential Recordings and Materials Preservation Act. The U.S. Supreme Court upheld the 1974 statute against a separation of powers challenge in a 1977 decision, Nixon v. Administrator of General Services<\/a>. Congress, acting with the benefit of the Court\u2019s analysis, built into the Presidential Records Act virtually all of the details of the 1974 Act that the Court had relied on in upholding its constitutionality. Nonetheless, Trump\u2019s OLC felt free to ignore<\/a> the force of the earlier opinion. Nixon v. GSA, OLC asserts<\/a>, \u201creflects the \u2018ancien r\u00e9gime\u2019 of the Court\u2019s \u2018mid-twentieth century\u2019 approach to separation of powers, not the more thoughtful approach appropriately required by subsequent developments in Supreme Court doctrine.\u201d Surely, the \u201cnouveau r\u00e9gime\u201d of the Trump Justice Department will draw nothing but encouragement from the Roberts Court\u2019s careless dismissal of its predecessors.<\/p>\n The occasions for OLC and judicial hubris will shortly multiply as there will now be many long-established practices called into question by Slaughter\u2014practices that will challenge the Roberts Court\u2019s capacity to turn its jumbled understanding of Congress\u2019s capacity to regulate the executive into a coherent jurisprudence. In the meantime, Americans will be left to ponder Chief Justice Roberts\u2019s assertion that the one-person rule valorized by Slaughter somehow vindicates<\/a> the \u201creliance interests of the American people \u2026 in the preservation of our constitutionally promised liberties.\u201d The majority has done the opposite, and we are only beginning to witness its implications.<\/p>\n ![\"Peter](\"https:\/\/www.newsbeep.com\/us\/wp-content\/uploads\/2026\/07\/shane.jpg\")
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