Wrapping Up Loose Ends After The Trump v. Slaughter Oral Argument That Left The Conservative Justices Tangled In Knots

Guest Blogger

Simon Lazarus

A deluge of ink, digital and otherwise, has been spilt over the case, Trump v. Slaughter, argued before the Supreme Court on December 8, 2025, which challenges the constitutionality of statutory ‘for-cause removal” restrictions  on the President’s authority to fire commissioners of the Federal Trade Commission. In that argument, three points and their implications, potentially critical to the outcome, were, to a greater or lesser extent, not fully vetted. Here I will briefly seek to tie down those loose ends and lay out necessary upshots.

These matters came to the fore because the oral argument exposed new cracks in the prior consensus buy-in by the six conservative justices, to a precept long popular among legal conservatives. This maxim, popularly known as “unitary executive theory (or UET),” holds that Congress lacks power to circumscribe in any way the President’s freedom to fire senior executive branch officials, on the ground that untrammeled removal authority is compelled by the text and original public meaning of Article II, Section One of the Constitution. This provision, known as the Article II “vesting clause,” prescribes that “the Executive Power [of the federal government] shall be vested in a President of the United States of America.”  In recent years, especially since 2020, when the Court last addressed this issue, a cascade of exhaustive academic works, from eminent conservatives as well as liberals, has shattered the factual foundation for unitary executive proponents’ originalist/ textualist catechism.  The reshaped historical record, and its implications, were sketched by counsel for Rebecca Slaughter, the FTC commissioner President Trump had purported to fire without cause, and by the liberal justices, and detailed in several amicus curiae briefs. As I wrote in The New Republic following the argument, the conservative justices struggled to cope with these new findings, tossing out top-of-the-head alternative rationales for their long-sought presidential absolutism result.

The problem for the conservative justices was that the terse text of the vesting clause does not itself actually specify that this grant to the President of the “executive power” – whatever that means – necessarily entails unbounded freedom to remove each and every senior official, for any reason or no reason. Unitary executive enthusiasts’ originalist/ textualist claim is rendered especially questionable  since the Constitution empowers the President to appoint such officials only with “the advice and consent of the Senate,” and, further, puts it up to Congress to create the agencies and offices those officials will hold, by legislation (which of course also requires the president’s signature). Moreover, other constitutional provisions give Congress major roles in determining how the executive branch is to be structured, populated, what tasks it is authorized to carry out, and how that should be done – in particular Congress’ Article I authority to “To make all Laws which shall be necessary and proper for carrying into Execution . . . all  Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”      So the only way to show that the framers understood the non-definitive text of the vesting clause to negate all removal-for-cause restrictions, is to show that, once the Constitution was ratified, early Congresses and presidents – in particular, George Washington, John Adams, and Thomas Jefferson – consistently proposed and enacted only federal entities the leaders of which served “at will,” that is to say, at the president’s pleasure. But that, as it has become clear, was simply not the case.

The conservative justices’ abandonment of their originally fervent  originalist/ textualist case for unitary executive theorizing was implicit from the tacks they plied in the argument. But neither counsel for Commissioner Slaughter nor, more importantly, the liberal justices expressly notched this huge concession on the wall. So that is the first loose-end that merits tying down here.

The conservative justices, and the Trump administration’s counsel, Solicitor General John Sauer, as have their allies in academic and advocacy posts, turned to a second constitutional provision. This is the so-called “take care” clause, also in Title II, which assigns to the President a duty to “take Care that the Laws be faithfully executed.” Unitary executive proponents have long treated the take care clause as a back-up, reinforcing and dictating the same result as the vesting clause. Thus, when asked by Justice Amy Coney Barrett whether the take care clause might prescribe less absolute presidential removal power, Solicitor General Sauer responded that the Roberts Court and its predecessors had treated both clauses the same – as “mutually reinforcing bases . . . as a settled beyond doubt, you know, exclusive and illimitable power of removal.” (my italics). Here the argument is, as in the lead pro-administration amicus curiae brief   by former Republican Attorneys General Edwin Meese and Michael Mukasey, and conservative originalist scholars Steven Calabresi and Christopher Yoo: “The President could not fulfill his duties under [the take care clause] if he could not control all principal and superior officers who exercise executive power.” But this interpretation literally turns constitutional text on its head -- reading: language instructing the president to ensure that subordinates “faithfully execute the laws” to deny Congress authority to enable him to do exactly that, while precluding him from ordering them to violate the law.

This straightforward observation resolves the second loose-end issue left dangling after the oral argument – the relationship between the vesting and take care clauses. They are not, as the administration contends, “mutually reinforcing,” and do not have identical effect. Unitary executive proponents” “illimitable” reading of the power granted by the vesting clause constitutes one plausible interpretation, among others – IF its text is viewed in isolation. But the take care clause actually forecloses that interpretation. To paraphrase Professor Marty Lederman, writing a year ago on this blog on a different, though related issue, “It’s difficult to imagine that [the] constitution would . . . disable the legislature from making it unlawful for a chief executive to instruct officials to corruptly use the enforcement instruments the legislature has entrusted to them . . . .” All the more so in this case, where the command for faithful execution is actually explicit in the text.

This upshot – that the take care clause rules out uniform executive theorists’ absolutist interpretation of the vesting clause – tees up the third Trump v. Slaughter loose-end issue: whether the question to be resolved by the Court is the constitutionality of any for-cause removal provision, or the actual provision in the FTC Act. The FTC Act provision specifies that a commissioner “may be removed by the President for inefficiency, neglect of duty, or malfeasance in office.”  That “INM” standard was inscribed in the first of the post-industrial revolution multi-member agencies, the 1887 Interstate Commerce Commission, deployed often since, including with the FTC in 1914. But UET presidential absolutists, and often until recently, even independent agency supporters have given little attention and less weight to any differences between INM and other “for cause” criteria. In Seila Law v. Consumer Financial Protection Bureau (CFPB), the 2020 case in which a 5-4 majority invalidated an INM removal restriction in a single-headed agency, Chief Justice Roberts brushed aside such arguments from CFPB’s counsel and Justice Elena Kagan’s dissent, while acknowledging that Congress had deployed similar provisions in “over two-dozen multi-member agencies.” Roberts rejected these claims that a “narrower” INM formula permitted constitutionally adequate presidential supervisory authority, scolding their proponents for “not advance[ing] any workable standard derived from the statutory language,” and for suggesting a case-by-case approach that was too “uncertain and elastic.” 

However, once again, intervening scholarship has shown up the Chief Justice’s disdain – as reflecting ignorance of literally centuries of statutory and judicial precedents and practice. In 2021, law professors Jane Manners and Lev Menand channeled decades of research into an 80-page Columbia Law Review article demonstrating that INM statutes employ long-established, widely prescribed, well-honed “permissions” for “broad” presidential supervision, not novel, impromptu, nor hand-cuffing restrictions. “Neglect of duty and malfeasance in office,” they wrote in a passage quoted in an amicus curiae brief of bipartisan former FTC commissioners, “are terms that have been used for hundreds of years to address the problem of an officer’s failure to faithfully execute the laws” while “[i]nefficiency” historically was “used . . . to describe wasteful government administration caused by inept officers.” (My italics)

Given these transformations of the factual record, it is not difficult to see why at the oral argument the conservative justices left behind their originalist arguments for presidential absolutism. When it comes down to deciding, if they, or at least two of them, can muster the candor to acknowledge newly surfaced facts and pay closer attention to relevant constitutional and statutory text, we could get a surprising result from this epochal case. No one is holding their breath. But such a turnabout would be a good thing, for the Court as well as the polity. 

Simon Lazarus is a lawyer and writer on constitutional law and politics. He served as Associate Director of President Jimmy Carter’s White House Domestic Policy Staff, and since then with private and public interest law firms in Washington, DC. His email address is Simonlaz@comcast.net.