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.