The Supreme Court Righted a Constitutional Wrong in Slaughter

After almost a century, the ghost of William E. Humphrey is put to rest. The Supreme Court, in the case Trump v. Slaughter, just decided, was the instrument in this act of mercy. An aberrant precedent put forward in Humphrey’s Executor v. United States (1935), decided in the throes of the early–New Deal High Court’s contest with Franklin Roosevelt, protected commissioners of the Federal Trade Commission (FTC) from removal by the President absent cause. A modern-day FTC commissioner, Rebecca Slaughter, sued President Donald Trump after her dismissal in 2025. “If anything more is left of Humphrey’s, we overrule it,” Chief Justice John Roberts wrote in the Court’s majority opinion. Slaughter’s tenure at the FTC is over, kaput.

The decision in Slaughter held that the meaning of the first clause of the first section of the second article of the U.S. Constitution coincides with the literal meaning of its text—that the executive power, all the executive power, including the power to dispense with officials, resides in the presidency (unless explicitly excepted). “These officers [heading agencies] were to serve as envoys of the President, not his equals,” Roberts wrote. An administrative state liberated from the authority of the elected president and, consequently, the American people is, as the Court held, an alien and invasive species. Introduced by Progressive fetishists of purportedly disinterested expertise, this unwelcome pest cannot inhabit the American constitutional ecosystem without disrupting it.

Proceeding from the text down the classic footpath of originalist analysis, the Court took up history and tradition. The delegates to the Constitutional Convention settled on an executive branch consisting of one man, and not a council, to ensure political accountability. With the Decision of 1789, the first Congress confirmed the prerogative to fire officers unilaterally as the constitutional right of the President. George Washington, John Adams, Thomas Jefferson, James Monroe, John Quincy Adams, and Andrew Jackson concurred. John Marshall, James Kent, and Joseph Story considered matter settled. The Supreme Court ratified the principle “[t]wice in the 19th century,” Roberts observed, and again in 1926 in Myers v. United States. Humphrey’s produced not an unassailable, hardened precedent but an anomaly, and later courts dismantled it incrementally before jettisoning it for good in Slaughter.

The American tradition is one of self-government. With respect to the executive branch, the Constitution designates that one man is to be elected president, and his actions are to be scrutinized by the voters, who render a judgment on his performance every four years.

In the late 19th century, however, there arose a new philosophy, under the influence of the German academy, that preferred rule-by-expert to rule by the people and their representatives. This philosophy was Progressivism, and its adherents believed that questions of governance could be reduced to scientific and empirical administration—to be done, naturally, by the Progressive intelligentsia. “Impressed by the perceived competence of the Prussian bureaucracy, they called on the Nation to stop ‘dogmatiz[ing] about the constitution of government,’” Justice Neil Gorsuch noted in a concurring opinion. Popular sovereignty and the “clumsy nuance” of public opinion, in the phrase of Woodrow Wilson, who signed into law the FTC Act of 1914, was to give way to the enlightened rule of the anointed. Statutes shielding administration officials from political accountability—that pesky speed bump which obstructs those who wish to roll speedily along the road to the sunny uplands of History—can be squared no better with the Constitution’s text than with the character of the self-governing republic it created.

Questions of policy do not, of course, suggest objective answers discoverable in the cost–benefit analyses of well-educated and well-heeled bureaucrats. The assistant-vice-commissar of an agency might well estimate the effects of a proposed rulemaking (although these estimates rarely complete the journey from paper to practice intact). But the mere fact that a certain policy will, e.g., cost so many dollars and improve air quality by so much does not determine whether Americans ought to desire it.

Data, no matter how sophisticated the formulas through which they are processed, do not conclude political debates that by their nature compel the consideration of the proper role of government, the tensions inherent in ordered liberty, and, ultimately, the final ends of the American republic. Only politics—understood in its truest form as the exercise of self-government—can do so. In politics, all empirical debates wend their way eventually back to moral, ontological, and epistemological issues. If the Declaration of Independence is rooted in the soil of self-evident truths, the Progressive fascination with disinterested, expertise-drunk administration stems from a self-evident lie.

Gorsuch’s concurrence ventured far beyond the reasoning of the majority, pursuing matters implicated, but not forcibly raised, by Slaughter. “Today, independent agencies do not just exercise executive law-enforcement powers. Congress has also delegated to them vast legislative and judicial powers, effectively allowing these agencies to make laws and decide disputes under them,” he wrote. “And allowing Presidents to control not only executive functions, but also vast new reservoirs of legislative and judicial powers, risks inviting exactly what those who framed our Constitution feared: the ‘accumulation of all powers…in the same hands, whether of one, a few or many, and whether hereditary, self appointed, or elective,’” Gorsuch argued, citing Federalist No. 47, which pronounced such an accumulation “the very definition of tyranny.” A constitutional unitary executive, the uncontested head of a branch tasked only with the execution of the laws, would have far fewer powers than those deployed during the legislative-executive-judicial presidencies of recent decades.

“It is time to return, all the way, to the Constitution,” Gorsuch stated. Whether the Supreme Court has the will or gumption to do it remains unclear, and there are reasons for doubt. Such a project would require excising decades of precedent to return the country, at the very least, to the Constitution before Roosevelt and his New Dealers, assisted by a cowed Supreme Court, set about defacing it—before Helvering v. Davis (1937), before the fourth footnote of United States v. Carolene Products Company (1938), before National Labor Relations Board v. Jones & Laughlin Steel Corporation (1937) and Wickard v. Filburn (1942). The fall of these precedents can come only with, inter alia, a reassertion of the nondelegation doctrine and a revivification of the long-dead 10th Amendment.

What Gorsuch proposes is not to stand athwart history, yelling Stop, but to stand athwart history, yelling Go Back. But turning the ship of state cannot be done by a small cadre of black-robed jurists alone. It must be done through the combined efforts of the ship’s crew, the American people. For all the Progress of the last century, America is still a self-governing nation, after all.