The short answers are: In Trump v. Cook<\/a>, Chief Justice John G. Roberts, Jr., relied on historically inaccurate claims about the First and Second Banks of the United States as a founding-era precedent for the Federal Reserve to uphold its independence\u2014and only by a surprisingly razor-thin 5\u20134 vote. And yes, in Trump v. Slaughter<\/a>, Chief Justice Roberts left<\/a> room for other agency independence, but it is a dark and small room. And the Court also invited new doubts: Can inferior officers be protected? What about administrative law judges and Article II adjudicators? And surprisingly, is the civil service safe?<\/p>\n In Trump v. Slaughter, Chief Justice Roberts crystallized<\/a> a multi-decade project of overturning Humphrey\u2019s in one sentence: \u201cWhen an agency executes a congressional mandate against private parties, it exercises executive power\u2014no ifs, ands, or quasis about it.\u201d<\/p>\n One could say that Chief Justice Roberts was going to overturn Humphrey\u2019s but save<\/a> the Federal Reserve, no ifs, ands, or originalist interpretations of the Constitution. The die had been cast a year earlier. In Wilcox, the Supreme Court had already repeated<\/a> its maximalist and ahistorical interpretation of Article II in one paragraph, and then it contradicted it in the next paragraph with a myth about the Federal Reserve.<\/p>\n In Slaughter and Cook, Chief Justice Roberts repeated debunked myths and assumptions about constitutional clauses that were<\/a> reminiscent of Warren Court \u201cpenumbra and emanation\u201d wish-fulfillment. In dissent, Justice Sonia Sotomayor summarized<\/a> a mountain of contrary evidence, especially from the last decade of scholarship, but Chief Justice Roberts ignored<\/a> or dismissed almost all of it.<\/p>\n Let\u2019s start with the controversial term \u201cquasi-judicial.\u201d Yes, along with Chief Justice Roberts, many modern readers assume<\/a> the term is a modern legal fiction contradicting the founders\u2019 design of the separation of powers. However, Justice Sotomayor explained<\/a> that the term has<\/a> a long pedigree back to England and the founding era, citing works by Noah Rosenblum<\/a>, Nathaniel Donahue<\/a>, Beau Baumann<\/a>, and me.<\/p>\n None of Chief Justice Roberts\u2019s other historical claims stand up to scrutiny. He led<\/a> with the argument that federal officers derive their offices from the President\u2019s appointment under the Appointments Clause<\/a> of the U.S. Constitution and consequently can be removed by the President. Never mind that this argument goes<\/a> against the text of the Constitution and goes<\/a> against the overwhelming evidence about the original public meaning of that text. He relied<\/a> on sources drawing on English royal practices written before the framers drafted the Appointments Clause, which deliberately rejected royal unilateral appointment power\u2014as Justice Antonin Scalia had emphasized<\/a> in National Labor Relations Board v. Noel Canning<\/a> and elsewhere. He even plucked<\/a> a single sentence from a fragmentary Thomas Jefferson note, omitting the sentences in the same note that contradicted his interpretation.<\/p>\n Chief Justice Roberts imported<\/a> assumptions about the English Crown\u2019s powers, but Justice Sotomayor correctly rebutted those assumptions, stating<\/a> that \u201cthe powers held by the English Crown and state governors before ratification did not include a removal power that the legislature could not modify.\u201d Indeed, the Supreme Court has just given<\/a> the President powers over administration greater than those of the British monarchs. Justice Sotomayor cited<\/a> recent historical research, including<\/a> my finding that, \u201cin England, many high offices, and even \u2018great offices,\u2019 department heads, and cabinet-level offices were unremovable by the Crown.\u201d<\/p>\n Chief Justice Roberts is no more accurate in his claims about the Executive Vesting Clause<\/a>, Take Care Clause<\/a>, and so-called Decision of 1789 <\/a>(there was<\/a> no decision!). Nor is he correct about a bizarre theory suggesting<\/a> that the President is the directly accountable representative of the nation (never mind the Electoral College, term limits, and the writing of the framers themselves) or a confusing theory<\/a> of \u201cliquidation\u201d through later practice (a cherry-picked theory based on cherry-picked evidence).<\/p>\n Chief Justice Roberts is also unable to substantiate<\/a> his reliance on the Banks of United States in Cook for a gerrymandered exception for the Federal Reserve. Justice Clarence Thomas was right in his dissent<\/a>: \u201cThe problem for the Court is that the First and Second Banks were banks with no executive power, whereas the Board is unquestionably a federal agency that wields considerable executive power.\u201d Chief Justice Roberts replied<\/a> with a grossly misleading claim, taking<\/a> a quotation out of context.<\/p>\n Conservative originalists correctly criticize the Roberts Court for engaging<\/a> in the kinds of \u201cpenumbra\u201d and \u201cemanation\u201d arguments that originalists ridiculed when coming from the Warren Court. The Roberts Court has become a \u201cConservative Warren Court.\u201d Chief Justice Roberts has repeatedly twisted American history and engaged<\/a> in \u201cArticle II vibes\u201d to serve his own political preferences\u2014no ifs, ands, or originalism(s).<\/p>\n So, what independence remains? Why did Chief Justice Roberts avoid any reference to the traditional tripartite categories of \u201cprincipal officers,\u201d \u201cinferior officers,\u201d and \u201cemployees?\u201d Justice Neil Gorsuch\u2019s concurrence emphasized<\/a> the importance of presidential control over principal officers, implicitly distinguishing them from inferior officers and the civil service. Notably, Article II never used the term \u201cprincipal officer\u201d in the Appointments Clause. It has been grafted into the appointments and removal jurisprudence from a reference in the Opinions Clause: The President \u201cmay require the opinion, in writing, of the principal officer in each of the executive departments.\u201d The textual and originalist grounds for all of this jurisprudence is questionable, at best. One way to cabin Slaughter is to limit it in future cases to \u201cdepartment heads\u201d or powerful commissions that are comparable to department heads, such as the Federal Trade Commission<\/p>\n What about administrative adjudication? Perhaps there are five votes to distinguish principal officers from inferior officers such as administrative law judges. Recall footnote 10 in Free Enterprise Fund vs. Public Company Accounting Oversight Board<\/a> in 2010: \u201cOur holding also does not address \u2026 administrative law judges\u201d who \u201cperform adjudicative rather than enforcement or policymaking functions.\u201d If the President can remove all principal officers at will (except the Federal Reserve Board), then the Free Enterprise rule<\/a> against double layers of insulation is obsolete, a vestige of Humphrey\u2019s. Perhaps inferior officers such as administrative law judges can be protected<\/a> under these new interpretations of Article II, as they are supervised by more accountable principal officers.<\/p>\n Moreover, independence for \u201cadjudication\u201d seems to be an open question. In the Slaughter oral arguments, Chief Justice Roberts and Justice Brett Kavanaugh asked<\/a> questions in search of a limiting principle on the unitary executive theory, worrying about the fate of adjudicatory administrators and Article I judges. In his majority opinion, Chief Justice Roberts\u2019s sweeping constitutional interpretations and maximalist phrasings seemed to leave no room for such independence, until near the end of the opinion where he cracked open<\/a> a door for the judges of \u201c\u2018non-Article III courts,\u2019 such as the Tax Court and the Court of Federal Claims.\u201d Chief Justice Roberts referred<\/a> to \u201cnon-Article III courts,\u201d instead of the narrower \u201cArticle I courts\u201d that he and Justice Kavanaugh specified in oral argument\u2014hinting at protecting Article II adjudicators such as administrative law judges. Did Free Enterprise Fund and Slaughter quietly preserve the quasi-judicial category, even if we are no longer allowed to call it \u201cquasi-judicial?\u201d It reads like the same intuition or principle.<\/p>\n What about the civil service? The Roberts Court already jeopardized the civil service\u2019s independence by declining to hear Harris v. Bessent<\/a>, leaving in place the U.S. Court of Appeals for the D.C. Circuit\u2019s ruling against the independence of the Merit Systems Protection Board. As a result, the Board no longer calls<\/a> itself \u201cindependent.\u201d How much will that change undermine the civil service, and is the civil service facing<\/a> further danger?<\/p>\n Language from the opinions in Slaughter and Cook also indicate<\/a> that other examples may be drawn from early Congresses\u2019\u2014and early Presidents\u2019\u2014\u201ccontemporaneous legislative exposition\u201d and independence when influencing<\/a> \u201cmonetary policy.\u201d Although Chief Justice Roberts misused the Banks of the United States, other commissions and offices created by early Congresses served as<\/a> a foundation for Federal Reserve independence and other commissions with sensitive monetary and fiscal powers. The Chief Justice also left<\/a> open offices \u201cof an investigative and informative nature,\u201d which may \u201cbe regarded as merely in aid of the legislative function of Congress\u201d\u2014perhaps a new \u201cquasi-legislative\u201d category? Lo and behold, a day after deciding Slaughter and Cook, the Roberts Court allowed<\/a> an injunction to continue protecting the Register of Copyrights and Director of the U.S. Copyright Office, whose duties under the Librarian of Congress include<\/a> adjudication and administrative rulemaking.<\/p>\n In any event, it seems like the Roberts Court is keeping its options open to preserve some agency independence\u2014not based upon careful history, but perhaps based on a mix of common sense, the importance of fair adjudication, and some connection to the legislative powers of the purse and Congress\u2019s interests in information and investigation.<\/p>\n Humphrey\u2019s old quasi-judicial category is dead. Long live Slaughter\u2019s new quasi-judicial category.<\/p>\n ![\"Jed](\"https:\/\/www.newsbeep.com\/us\/wp-content\/uploads\/2026\/07\/Jed-Shugerman-600x600-1.jpg\")
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