{"id":328,"date":"2026-07-02T14:10:56","date_gmt":"2026-07-02T14:10:56","guid":{"rendered":"https:\/\/americanservicereview.com\/?p=328"},"modified":"2026-07-02T14:10:56","modified_gmt":"2026-07-02T14:10:56","slug":"after-slaughter-and-cook-future-fed-fights-and-maybe-some-midnight-firings","status":"publish","type":"post","link":"https:\/\/americanservicereview.com\/?p=328","title":{"rendered":"After Slaughter and Cook: future Fed fights, and maybe some midnight firings"},"content":{"rendered":"<div>\n<p>Ninety-one years ago, when the Supreme Court held in <em>Humphrey\u2019s Executor v. United States<\/em> that Congress could make agencies like the Federal Trade Commission \u201cindependent\u201d from total presidential control, many were shocked \u2013 including President Franklin Roosevelt himself.<\/p>\n<p>Read more <a href=\"https:\/\/americanservicereview.com\/?p=327\">What we learned about the court this term: an animated explainer<\/a><\/p>\n<p>FDR was \u201coutraged by the <em>Humphrey<\/em> ruling,\u201d one historian recounted, because not a decade earlier, in 1926\u2019s <em>Myers v. United States, <\/em>the court had broadly endorsed presidential power to fire agency heads. FDR \u201chad strong ground for believing he had acted properly\u201d in firing FTC Commission William Humphrey. Worse still, even Justices Louis Brandeis and Benjamin Cardozo had joined the court\u2019s unanimous ruling, which FDR found \u201cbewildering.\u201d<\/p>\n<p>By contrast, no one should have been bewildered by the Roberts court\u2019s approach to agency independence last week. The outcomes in <em>Trump v. Slaughter<\/em>, on the Federal Trade Commission, and <em>Trump v. Cook<\/em>, on the Federal Reserve, had been telegraphed for months, even years.<\/p>\n<p>Nearly all of Roberts\u2019 tenure on the court has been marked by clear skepticism of <em>Humphrey\u2019s Executor<\/em>. The court has been  of its bottom-line ruling that Congress can give \u201cquasi-judicial and quasi-legislative\u201d regulatory commissions some independence from the president by providing the commissioners a fixed term of years and preventing presidents from firing them early, except \u201cfor cause,\u201d sometimes only for \u201cinefficiency, neglect of duty, or malfeasance in office.\u201d And, even setting aside <em>Humphrey\u2019s<\/em> description of those agencies in 1935, the court has also been skeptical of arguments that modern regulatory agencies\u2019 work, regardless of nominal labels, is in substance anything other than <em>executive<\/em> action.<\/p>\n<p>This has played out in a series of prominent decisions, written mostly by the chief justice himself. In 2009, Roberts wrote the court\u2019s majority opinion in <em>Free Enterprise Fund v. PCAOB<\/em>, declaring that <em>Humphrey\u2019s Executor<\/em>\u2019s precedent would not be extended to new, novel forms of agency independence. Then, in 2020, he wrote the court\u2019s opinion in <em>Seila Law v. CFPB<\/em>, voiding the Consumer Financial Protection Bureau\u2019s for-cause removal protection because the CFPB, unlike the FTC in <em>Humphrey\u2019s<\/em>, is not a multi-member commission \u2013 and, more fundamentally, because the CFPB wields \u201csignificant executive power.\u201d The court reiterated this principle a year later as it pertains to the Federal Housing Finance Agency, in .<\/p>\n<p>When the end finally came for <em>Humphrey\u2019s Executor<\/em> on June 29, and the court held that the modern FTC\u2019s powers are overwhelmingly executive, Roberts\u2019 majority opinion reiterated what it had been saying for years \u2013 that, whatever nominal labels Congress might attach to the FTC as a whole, or to its specific powers (such as \u201crulemaking\u201d or agency \u201cadjudication\u201d), in <em>substance<\/em> the FTC\u2019s powers are quintessentially executive:<\/p>\n<blockquote><p>First, the FTC has the power to promulgate substantive rules that carry the force of law. \u2026 The power to flesh out such statutory regimes\u2014and to do so through discretionary actions, largely outside the remit of courts\u2014is executive through and through.<\/p><\/blockquote>\n<blockquote><p>Second, the FTC not only investigates businesses to ensure they comply with its statutes and rules \u2026 but enforces those statutes and rules through in-house adjudications. \u2026 This power, too, is executive.<\/p><\/blockquote>\n<blockquote><p>And third, the FTC files civil suits on behalf of the United States in federal court. \u2026 As we have said many times, the \u201cdiscretionary power to seek judicial relief\u201d lies at the very core of executive authority.<\/p><\/blockquote>\n<p>That analysis, filled with cites to <em>Seila Law<\/em>, should surprise no one. Nor did the court\u2019s holding in <em>Trump v. Cook<\/em>, that the Constitution <em>allows<\/em> Congress to protect the Federal Reserve System\u2019s independence by prohibiting presidents from firing Federal Reserve governors without \u201ccause,\u201d come out of the blue. The Roberts court has been signaling this, too, for years \u2013 in <em>Seila Law<\/em>\u2019s observation that the Federal Reserve System is not simply analogous to regulatory agencies like the CFPB; and last year, in , where the court sketched out its sense that the Federal Reserve System rests on much different constitutional footing than other administrative agencies, tracing back to the founding-era Bank of the United States.<\/p>\n<p>To be sure, not all the justices see things this way. In last week\u2019s <em>Cook<\/em> decision, Justices Samuel Alito (joined by Neil Gorsuch) and Amy Coney Barrett each wrote dissents, explicitly declining to reach this issue of Fed constitutionality, even though they had not dissented from the court\u2019s discussion of the Fed in last summer\u2019s per curiam order on the NLRB. More significantly, Justice Clarence Thomas, who also did not dissent last summer, dissented loudly this time, laying out a strong argument that the Federal Reserve Board does, in fact, wield significant executive power, because Congress has empowered it to regulate the private sector.<\/p>\n<p>The chief justice\u2019s argument to the contrary \u2013 with which, as I\u2019ve indicated in previous columns, I\u2019m strongly inclined to agree \u2013 begins from fundamentally different premises. Where he sees the FTC (and CFPB, and surely most other agencies) as doing virtually nothing other than executing laws through regulatory actions against the private sector, he sees the Federal Reserve System \u2013 its Federal Reserve Board of Governors, its Federal Open Market Committee, and its Federal Reserve Banks \u2013 as being predominantly engaged in <em>monetary<\/em> activities. Or, as President George Washington and Alexander Hamilton would have said, <em>banking<\/em> activities \u2013 which, as Roberts\u2019 opinion for the court emphasizes, has never been constitutionally committed to sheer executive power.<\/p>\n<p>But, as Thomas emphasizes, and Roberts recognizes, the Federal Reserve System does have regulatory powers. And that points toward one of the next developments that we should await: a constitutional challenge to the Federal Reserve System\u2019s power to regulate banks and other private actors.<\/p>\n<p>Roberts signals this freely, in both <em>Trump v. Cook<\/em> itself and, it seems to me, in his discussion of the FTC in <em>Trump v. Slaughter<\/em>. In footnote 6 of the <em>Cook<\/em> decision, when Roberts responds to Thomas\u2019 account of the Fed\u2019s regulatory powers, he writes: \u201cIn upholding the constitutionality of the Federal Reserve as currently structured and with its existing enforcement authorities, we do not suggest that Congress could assign the Federal Reserve additional regulatory powers that are attenuated from monetary policy.\u201d This footnote invites the question \u2013 perhaps in future litigation brought by Fed-regulated plaintiffs \u2013 of whether specific aspects of the Fed\u2019s regulatory powers are in fact unconstitutional, because they are being wielded by a Federal Reserve that is independent from total presidential control.<\/p>\n<p>For Roberts and the court, the clear solution for such a problem would not be to end the Fed\u2019s independence, but rather to <em>sever<\/em> those discrete regulatory powers from the Fed.<\/p>\n<p>As it happens, Roberts suggests such an approach (albeit not in direct reference to the Fed) in another footnote \u2013 this time in his opinion for the court in <em>Trump v. Slaughter<\/em>. In footnote 3\u2019s description of how to remedy a constitutional flaw in one small part of a much larger statutory framework, Roberts writes: \u201cIn our prior cases, \u2018when confronting a constitutional flaw in a statute\u2019 like the one before us, we have sought to limit \u2018the solution to the problem,\u2019 severing the invalid removal provision \u2018while leaving the remainder intact.\u2019\u201d<\/p>\n<p>I think this is precisely how Roberts \u2013 along with Justice Brett Kavanaugh (who joined both <em>Cook<\/em> and <em>Slaughter<\/em> in full) and perhaps others \u2013 would ultimately approach a challenge to the Fed\u2019s regulatory powers: not by questioning the Fed\u2019s independence, but by severing that particular aspect of the Fed\u2019s powers.<\/p>\n<p>Read more <a href=\"https:\/\/americanservicereview.com\/?p=325\">The Stat Pack is back<\/a><\/p>\n<p>In that respect, when Roberts and Kavanaugh see Fed independence differently from Thomas, it is because they are looking through opposite ends of the institutional telescope: Roberts and Kavanaugh see rightly independent central banking system with perhaps unconstitutional regulatory powers; Thomas sees a regulatory agency with unconstitutional independence. (Looking ahead to such arguments, we would all be well-served by reading Professors Aaron Nielson\u2019s and Aditya Bamzai\u2019s excellent Cornell Law Review article, \u201cArticle II and the Federal Reserve.\u201d)<\/p>\n<p>In the meantime, here are a few more issues that could arise in these cases\u2019 wake, among the FTC and other previously independent regulatory agencies:<\/p>\n<p><strong>Appointments:<\/strong> The <em>Slaughter<\/em> case was about removing regulatory commissioners, but its effects could also be felt on <em>appointments<\/em>.<\/p>\n<p>Multi-member agencies like the FTC operate under a statutory requirement for bipartisanship. At the five-member FTC, for example, Congress requires that \u201cNot more than three of the Commissioners shall be members of the same political party.\u201d This leaves presidents responsible for appointing members representing the opposing political party \u2013 a process that has worked, even in our bitterly partisan era, under  that the president will cooperate with the Senate\u2019s opposition leader to pick minority-party nominees.<\/p>\n<p>That approach makes sense when the president cannot unilaterally fire the other party\u2019s members for any reason or no reason at all. But will it work in the post-<em>Slaughter<\/em> era? We should not assume that the opposing party\u2019s Senate leader will invest much time or effort in recruiting or vetting new appointees.<\/p>\n<p>And it is not hard to imagine President Donald Trump or his successors reading the bipartisanship requirements narrowly, even cynically \u2013 say, by appointing three Republicans and two others who are not Democrats but not registered Republicans. Or perhaps presidents will simply appoint a bare majority of three members to each commission and leave two seats perpetually vacant.<\/p>\n<p>Which raises the next question \u2026<\/p>\n<p><strong>Quorums:<\/strong> Given the large number of vacancies on multimember commissions recently, many of us have spent time looking up a lot of agency-specific quorum requirements: say, three members for the Federal Communications Commission, maybe three or two for the FTC, and perhaps just one member for the Commodity Futures Trading Commission?<\/p>\n<p>If we are entering an era of bare-majority quorums, then we are also entering an era when a single commissioner\u2019s death, debilitation, or lucrative private-sector job opportunity would render his agency inert, unable to promulgate regulations or take other substantive regulatory actions requiring a quorum of the agency\u2019s leaders, until the president can nominate a new commissioner and get the Senate\u2019s confirmation.<\/p>\n<p>And speaking of vacancies \u2026<\/p>\n<p><strong>Waking up to \u201cmidnight firings\u201d:<\/strong> As a smart friend pointed out to me, the <em>Slaughter<\/em> decision radically changes the incentives for presidents in the last days of their administration, at least when the next president comes from the other party.<\/p>\n<p>Simply put: A president who see his successor with something less than equanimity will have a great opportunity to kneecap the new administration by firing all the remaining commissioners from the other party, so that the incoming administration will not have readily available commissioners to serve as acting chairmen.<\/p>\n<p>That is, when a new president is inaugurated, he appoints one of the carry-over members of each regulatory commission \u2013 that is, one of the last president\u2019s opposite-party appointees \u2013 to serve as acting chairman, to keep the agency on track until other commissioners can be appointed and Senate-confirmed.<\/p>\n<p>It is not hard to see this play out. Would Trump, on his last day in office, fire all remaining Democratic members of the FCC and other agencies \u2013 assuming any Democratic members would still be in place \u2013 before a new Democratic president takes the inaugural oath? (Would President Joe Biden have done so in January 2025, had the Supreme Court ended <em>Humphrey\u2019s Executor <\/em>years earlier?) If so, this new kind of \u201cmidnight firings\u201d could render many agencies effectively moot for the new administration\u2019s first months or even longer.<\/p>\n<p>These are just a few things I\u2019ll be curiously watching, in the months and years ahead. Still, I hesitate to make any great predictions of what <em>Slaughter <\/em>and <em>Cook<\/em> might mean for the future of regulation and administration. I\u2019m old enough to remember just a couple years ago, when very smart people were confidently declaring that the end of <em>Chevron <\/em>deference would incapacitate government agencies. Surely, two years from now, <em>Slaughter<\/em> and <em>Cook<\/em> will seem as distant a memory as <em>Loper Bright v. Raimondo<\/em> seems today.<\/p>\n<p>Read more <a href=\"https:\/\/americanservicereview.com\/?p=322\">Three cheers for Barbara!<\/a><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"<p>Ninety-one years ago, when the Supreme Court held in Humphrey\u2019s Executor v. United States that Congress could make agencies like the Federal Trade Commission \u201cindependent\u201d from total presidential control, many were shocked \u2013 including President Franklin Roosevelt himself. Read more What we learned about the court this term: an animated explainer FDR was \u201coutraged by [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":38,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[11],"tags":[],"class_list":["post-328","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-commentary"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.6 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>After Slaughter and Cook: future Fed fights, and maybe some midnight firings - American Service Review<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/americanservicereview.com\/?p=328\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"After Slaughter and Cook: future Fed fights, and maybe some midnight firings - American Service Review\" \/>\n<meta property=\"og:description\" content=\"Ninety-one years ago, when the Supreme Court held in Humphrey\u2019s Executor v. 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