Written by: Branden East
President Trump’s independent agency head firings are making their way to the Supreme Court, with heavy implications for presidential removal power, the administrative state, and politics generally. The Court’s temporary responses to these removals provide insight into whether Trump’s campaign will bring the unitary executive theory, which functionally claims that a president may remove any agency head at will, closer to reality.
Key Removals to Watch
While many of Trump’s personnel decisions have garnered discussion, three firings stand out, given their advanced legal dispositions.
First, Trump removed National Labor Relations Board (“NLRB”) member Gwynne Wilcox from her position on January 28, citing the NLRB’s failure to “fulfill[] its responsibility to the American people” and its work’s inconsistency with his administration’s objectives. While his reasoning may sound logical, the NLRB’s enabling statute mandates that board members only be removed upon notice and hearing, for neglect of duty or malfeasance in office.
Second, Trump removed Commissioners Rebecca Slaughter and Alvaro Bedoya (who has since resigned) from the Federal Trade Commission (“FTC”) on March 18, because their “continued service on the FTC is inconsistent with [his Administration’s] priorities.” The Federal Trade Commission Act says that commissioners are only removable for “inefficiency, neglect of duty, or malfeasance in office.”
Third, the President removed Federal Reserve Governor Lisa Cook from her position on August 25, citing concerns of past fraud as providing “sufficient cause” for the removal. Fed Governors may only be removed during their terms “for cause.” However, the lower federal courts disagreed over whether pre-appointment misconduct satisfies the requirement.
Removal Authority Precedent: Then vs. Now
Twentieth-century precedent suggests that the removals were unconstitutional. In Humphrey’s Ex’r v. United States, the Court unanimously upheld the FTC’s removal provision’s constitutionality. The Court emphasized the agency’s legislative and judicial, rather than executive, functions, saying the validity of such removal provisions depends on “the character of the office.” Similarly, in Morrison v. Olson, the Court held that the constitutionality depends on whether “[the agencies] impede the President’s ability to perform his constitutional duty.”
However, the Court has recently narrowed these decisions’ broader applications, moving closer to the unitary executive theory in the process. The theory claims that Presidents have unchecked authority to remove agency heads to fulfill their executive branch duties. While he tries to distance himself from the theory in a footnote, Justice Scalia’s Morrison dissent is reminiscent of this theory. He argued that the Vesting Clause (“The executive Power shall be vested in a President”) gives all executive power to the President. Supporters look at this Clause, the Take Care Clause (“he shall take Care that the Laws be faithfully executed”), and the lack of any provision limiting removal power (despite another doing so for appointments) as evidence of unlimited removal power. However, critics look at the history of administrative agencies to challenge whether the Founding Fathers intended such power.
In Seila Law LLC v. Consumer Fin. Prot. Bureau, the Court held that for-cause removal of single-person agency heads with significant executive power is unconstitutional. The Court reemphasized Myers v. United States, which held that the President had “general administrative control of those executing the laws, including… removal of executive officers[,]” as the leading precedent. Importantly, the Court narrowed Humphrey’s Ex’r and Morrison, holding that they were narrow exceptions to Myers, the general rule: Humphrey’s Ex’r allowed for removal limitations for multimember, non-partisan, expert boards performing legislative and judicial rather than executive duties; Morrison applied to “inferior officers with limited duties and no policymaking or administrative authority.”
The Court expanded Seila Law in Collins v. Yellen. In invalidating removal protections for the Federal Housing Finance Agency’s single director, the Court held that “[t]he nature and breadth of an agency’s authority is not dispositive in determining whether Congress may limit [removal power].” The Court added that for agencies with a singular head, for cause removal is more restrictive than at-will removal and therefore unconstitutional.
The Supreme Court’s Initial Reactions
While they are not official judgments, the Supreme Court’s emergency orders indicate further expansion of the President’s removal powers. In denying Wilcox from returning to work on May 22, the Court referenced the Vesting Clause and Seila Law’s endorsement of generally broad removal power, followed by its “judgment that the Government is likely to show that… the NLRB… exercise[s] considerable executive power.” While no explanation was provided for enjoining Slaughter’s reentry into the FTC, the Court announced on September 22 that it will hear full argument on whether Humphrey’s Ex’r should be overruled, as well as whether federal courts can prevent employees’ removal from public office. Granted, Seila Law’s narrowing of Humphrey’s Ex’r reduces the gravity of overruling it. However, these cases could still expand removal power under Seila Law and Collins by expanding their holdings to agencies led by boards rather than a singular head.
On October 1, the Supreme Court diverted from these orders, allowing Cook to return to the Fed pending oral argument, again with no explanation. However, in the emergency order blocking Wilcox’s return to work, the Court differentiated the Fed from the NLRB, arguing that the Fed is historically distinct, uniquely structured, and “quasi-private”. This case may be a key opportunity for the Court to qualify its expansion of removal power and avoid fully embracing the unitary executive theory. Seeing how the Justices supporting the previous orders value this distinction will carry similar importance.
These cases, as well as the unitary executive theory generally, have major implications in the short- and long-term. The closer the Supreme Court comes to adopting the theory, the more power the President gains over the government and the political process. This could chill agency creation and delegation, leading future Congresses to prefer self-enforcing statutes and possibly even shrinking the administrative state. Additionally, leaders of independent agencies could feel compelled to pursue future presidents’ agendas instead of their expertise or the public interest.
Sources
Cass et. al, Administrative Law: Cases and Materials (Rachel E. Barkow et al. eds., 9th ed. 2024).
Cook v. Trump, 2025 WL 2607761 (Sep. 9, 2025).
Cook v. Trump, 2025 WL 2654786 (Sep. 15, 2025).
Collins v. Yellen, 594 U.S. 220 (2021).
Email from Trent Morse, Deputy Dir., Office of Presidential Pers., to Gwynne Wilcox, Board Member, Nat’l Lab. Rel.s Bd., and Jennifer Abruzzo, Gen. Counsel, Nat’l Lab. Rel.s Bd. (Jan. 28, 2025 3:38 AM).
Email from Trent Morse, Deputy Dir., Office of Presidential Pers., to Rebecca Slaughter, Fed. Trade Comm’r, Fed. Trade Comm’n (Mar. 18, 2025, 4:24 PM).
Federal Trade Commission Act, 15 U.S.C. § 41.
Federal Reserve Act, 12 U.S.C. § 242.
Humphrey’s Ex’r v. United States, 295 U.S. 602 (1935).
In re Trump v. Cook, 2025 U.S. LEXIS 2811 (October 1, 2025).
In re Trump v. Slaughter, 2025 U.S. LEXIS 2794 (Sep. 22, 2025).
In re Trump v. Slaughter, 2025 WL 2582814 (U.S. Sep. 9, 2025)
In re Trump v. Wilcox, 145 S.Ct. 1415 (2025).
Letter from Donald Trump, President, United States of America, to Lisa Cook, Governor, Fed. Rsrv. (August 25, 2025).
Morrison v. Olson, 487 U.S. 654 (1988).
Megan Messerly & Bob King, Trump Signs Order to Claim Power Over Independent Agencies, Politico (Feb. 18, 2025, 08:39 PM).
National Labor Relations Act, 29 U.S.C. § 153(a).
Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1 (1994).
Press Release, American Economic Liberties Project, Former FTC Commissioner Alvaro Bedoya Joins Economic Liberties As Senior Advisor (July 1, 2025).
Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. 197 (2020).
U.S. Const. art. II.