The U.S. Supreme Court’s decision in Trump v. Slaughter affirmed that the President may terminate a commissioner of the Federal Trade Commission at will, explicitly overturning Humphrey’s Executor v. United States. The ruling rests on the view that Article II of the Constitution extends to the President the power, unbounded by contrary statutes, to remove presidentially appointed officers.
Supreme Court Ruling Shifts Removal Power
Essays published in The Regulatory Review discuss the costs of such a loss. Former FTC commissioner Rebecca Slaughter argues that independent commissions promote market stability and force political consensus. Former National Labor Relations Board member Gwynne Wilcox stresses that a prolonged lack of a quorum, made possible by the erosion of for-cause removal protections, harms workers’ rights and the congressional design meant to safeguard them.
All contributors agree that unchecked at — will removal would effectively eliminate the independent regulatory commission as an administrative form—unless Congress steps in.
Congressional Blueprint for Agency Independence
Congress could protect agencies’ independence by building three provisions that facilitate regulatory agencies’ independence into their organic statutes: First, a bipartisan requirement-that is, a requirement that an independent board or commission consist of an equal number of members from both parties. These are already present in many statutes. Second, a provision mandating that the President nominate a replacement within a specified timeframe following the removal of an officer. Third, a civil cause of action against a former President for noncompliance with the mandatory replacement provision of the statute while in office.
The focus here is the second element. Currently, the statutes that empower regulatory agencies lack mandatory replacement provisions. Although these statutes provide for removal of officers by the President, they are uniformly silent on procedures to fill the vacancy created by a removal. They merely state that the President “shall” appoint officers and outline the terms of appointment.
For instance, the National Labor Relations Act provides that successors shall be appointed for the unexpired term of the member they replace, yet it sets no deadline for making that appointment.
Without a statutory deadline, a President can remove an independent officer and simply leave the seat empty. During his tenure, President Donald J. Trump did exactly that with the Merit Systems Protection Board and other agencies, effectively crippling their operations. While such inaction breaches a norm of presidential administration, it does not violate the text of the statutes.
A mandatory replacement provision with a clear deadline would plug this loophole and restore balance between legislative intent and executive authority. By requiring the President to act within a set period and to respect the bipartisan composition, Congress would safeguard both the agency’s functionality and its political neutrality.
From the legislative perspective, agencies are creations of Congress; ensuring timely replacement of removed officers protects their existence and the purpose for which they were established. It also maintains the bipartisan balance that Congress intended.
From the executive angle, filling vacancies is an exercise of the President’s appointment power. The requirement does not strip the President of the ability to remove officers at will; rather, it compels the use of the appointment authority that already rests with the office.
Critics such as Bernard Sharfman and Nick Morgan argue that bipartisan requirements violate the Constitution’s Vesting Clause, likening them to for-cause protections that limit the President’s pool of candidates.