SlaughterHouse 9

SlaughterHouse 9
The Unitary Executive Theory Ascendant – Sort of
Harry Litman
Dec 10,2025

 
Editor’s Note: A version of this essay appears today in “The Renovator,” the Substack founded by Harvard professor and former Washington Post columnist Danielle Allen, who currently directs the Allen Lab for Democracy Renovation at Harvard. The Substack is dedicated to developing ideas to build democracy back up. You can check it out here.


By the time the justices of the U.S. Supreme Court rose from the bench on Monday after 2+ hours of oral argument, the widespread assumption had hardened into near-certainty: the court is going to overrule Humphrey’s Executor. To anyone not steeped in administrative law, that might sound arcane. It’s not. Overruling Humphrey’s would be a constitutional and practical earthquake, dampened only because the court has been sending out warning tremors in a series of decisions over the past several years.

Talking Feds Substack is a reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber.

The likely decision in Trump v. Slaughter will reshape both constitutional structure and everyday governance. Think of the alphabet-soup agencies—the FTC, FCC, CFPB, NLRB, FERC, SEC—whose rulings determine your cellphone bill, the chemicals in your drinking water, the fees your bank can charge, and the conditions under which workers organize. For nearly a century, many of these bodies have operated with a modest insulation from presidential control: their leaders could be removed by the president only for cause. That modest layer of insulation was designed to ensure that foundational regulatory judgments rested on expertise rather than the gusts of politics.

That structure didn’t arise by accident. In the early twentieth century, Congress confronted markets and technologies evolving too rapidly for a part-time legislature to regulate in real time. Independent agencies offered a solution: institutions that could exercise quasi-legislative and quasi-judicial powers with continuity, technical expertise, and a measure of independence from the president. As Justice Kagan emphasized during argument in Trump v. Slaughter, this was the central bargain: Congress delegated sweeping authority because it simultaneously restrained presidential removal. Independence was the mechanism that made the delegation palatable.

Kagan, a former administrative law professor who knows the area best among the Justices, made the pivotal point in a sharp line of questioning with Solicitor General John Sauer. The independence of these agencies wasn’t a historical curiosity; it was the condition that made Congress willing to hand them so much power in the first place. Remove the modest protection against political firing, and the constitutional rationale for letting expert bodies wield sweeping authority begins to evaporate. The original bargain collapses, even as the delegated power remains.

Humphrey’s Executor has been a critical part of that overall bargain for 90 years. If—or when—the case falls, the president will be permitted to fire agency heads at will, including for straightforward political disagreement. The executive gains leverage and political patronage, while the public loses the safeguard Congress once saw as indispensable.

In truth, the ground has been shifting for years. In Seila Law, the Court rejected removal protection for the Consumer Financial Protection Bureau (CFPB) director; in Collins, it extended that logic to the Federal Housing Finance Agency (FHFA); and in the CFPB funding cases, several Justices openly questioned whether independent agencies of any kind could survive constitutional scrutiny. These were not isolated rulings but a steady doctrinal drumbeat. By the time Trump v. Slaughter arrived at the Court, Humphrey’s was already a shaky pillar waiting to be knocked loose.

And removal protection was only one part of the original design. For decades, Congress relied on a broader set of stabilizing devices to keep the administrative system in balance: the legislative veto struck down in Chadha; judicial deference doctrines like Chevron, now overruled; and spending constraints that recent presidents have shown can be sidestepped in practice. One by one, those guardrails have fallen.

With those supports eroded, the Court has increasingly committed itself to the logic of the unitary executive. That theory, long the darling of the Federalist Society crowd, holds (among other things) that since Article II vests all executive power in the president, it requires that he maintain full, direct control over every officer who exercises that power. In its strongest form, the theory treats any statutory limits on the president’s ability to direct or remove executive officials as constitutionally suspect. It hard-wires into constitutional law the sweeping firing authority Trump once stylized on reality television.

But a funny thing happened in the oral argument on the way to the full-bodied embrace of the unitary executive. The justices flinched. Several of them, led by Chief Justice Roberts, were searching for a “limiting principle” that would allow them to overrule Humphrey’s without also permitting a president to fire the Fed Chair on a whim — a move that could send markets into chaos and trigger global instability. The instinct is understandable. But constitutionally, it’s incoherent.

But the unitary executive theory does not allow for piecemeal adoption. If Article II truly requires presidential control over all executive officers, the importance of the Fed—the fact that without a degree of political independence the economy could crater—should be irrelevant. Otherwise put, the theory is not incremental; it is binary. Either Article II demands the president have full removal authority, or it doesn’t.

But the Court appears poised to adopt most of the theory’s logic while stopping short of its final implications—moving substantially, one might say seven-eighths, toward the maximalist view without embracing the consequences of the theory it invokes. The majority seems to want the political payoff of a stronger presidency without accepting the doctrinal endpoint its own reasoning dictates.

The likely result is an institutional stance that is neither candid nor modest. The Court is willing to dismantle a century-old administrative structure, to point Congress toward remedies that are politically unattainable, and to advance nearly the whole of a sweeping theory of executive power while avoiding a straightforward reckoning with its endpoint. That combination—structural upheaval joined to a refusal to state its own premises plainly—is what gives this moment its character of constitutional faint-heartedness.

The oral argument also revealed a related, parallel track to the absolutist position on the Executive’s removal power: the advance of a deregulatory agenda. As Justice Gorsuch suggested, increased presidential control is valuable because it tends to produce less regulation. If agency heads serve entirely at the president’s pleasure, an administration skeptical of regulation can simply appoint leaders disinclined to act. The structure remains; the mission dwindles. We are back to the famous maxim of Ronald Reagan, whose administration ushered in the broader project that has culminated in today’s Court: “government is not the solution to our problem; government is the problem.”

The potential fallout could be disastrous for Americans, except perhaps the most wealthy. Environmental protections, consumer safeguards, labor rules, and privacy standards will all become contingent on the preferences of whichever president occupies the Oval Office, starting with Trump’s crass arch-political spoils system. Markets depend on regulatory stability, and agencies jerked back and forth by partisan priorities will generate volatility, uncertainty, and litigation chaos. Instead of durable national policy, we will live in an era of regulatory whiplash—rules announced, withdrawn, reinstated, and abandoned with each change of the guard.

Of course, the bounty of unfettered executive power could also work to the political benefit of a future Democratic president. But the true sting of the prospective holding is with a president like Trump – check that, with Trump uniquely, since in this regard, his corruption is singular. Even if future presidents can fire agency heads capriciously, we have to hope that post-Trump norms would take hold making departures from the principles of professional, apolitical agency decision making the exception rather than the rule.

In theory, Congress could go running with the likely result in the Slaughter case, reconstructing a new administrative architecture in which it retains within Article I—and thus not susceptible to executive removal—certain regulatory or adjudicative functions into entities less susceptible to removal-power objections. But doing so would require broad, bipartisan—realistically, veto-proof—majorities, at a time when even routine appropriations strain the system. As a practical matter, the Court’s assurance that Congress can “fix” whatever structural disruption follows is more hypothetical than real.

It’s a similar dynamic as the Court put into effect in its disastrous decision in Shelby County v. Holder. There, the Court invalidated the Voting Rights Act’s preclearance formula while noting that Congress remained free to devise a new one. But the Justices surely understood that such a consensus was no longer politically attainable. The invitation operated less as a genuine pathway forward than as a way to distance the Court from the predictable consequences of its own decision. Something similar is happening here. By pointing to theoretical congressional repair mechanisms, the Court gestures toward a solution it knows will almost certainly never materialize.

The upshot is a presidency even more dominant than the Framers imagined and an administrative apparatus more susceptible to political purge than at any time in the last century. Look for the Court’s decision, due by June, to strike down Humphrey’s Executor, embrace most of the unitary-executive theory, and leave the administrative state exposed to political purge—yet stop short of accepting the consequences of its own reasoning.

It is shaping up to be a case for the books that manages to be both sweeping and evasive: a fundamental remapping of federal power disguised as doctrinal housekeeping. The Court will destabilize the architecture of modern governance and then step back as if it had merely rearranged the furniture. The cost of this rollback of much of the administrative state will be borne by all the people who have greatly benefited from the political insulation and expertise of independent agencies for the last 100 years – that is, all of us.

Talk to you later.

Talking Feds Substack is a reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber.