On March 18, 2025, President Donald Trump purged the Democrats from the Federal Trade Commission, firing Commissioners Rebecca Kelly Slaughter and Alvaro Bedoya. President Trump’s sole stated reason was that their “continued service on the FTC is inconsistent with my Administration’s priorities.” He cited no misconduct, no neglect of duty, no malfeasance in office: only disagreement with their policy views. Commissioner Slaughter sued. Commissioner Bedoya initially joined the lawsuit but resigned his position before the case reached the United States Supreme Court, which will hear oral arguments for the case December 8.
The statute governing FTC commissioners directly prohibits these firings. Under 15 U.S.C. § 41, commissioners may be removed by the president only “for inefficiency, neglect of duty, or malfeasance in office.” Policy disagreement is not among the permitted grounds. A federal court correctly declared the attempted removal unlawful. The D.C. Circuit Court agreed.
Commissioner Slaughter won in the courts below because the law, as it stands, is on her side. So the Trump administration is now asking the Supreme Court to change the law by overturning decades of precedent and ruling that Congress has no power to create independent agencies – agencies that are democratically accountable, but insulated from partisan politics.
This question hinges on the so-called “unitary executive” theory, which claims that all executive power is concentrated in the president and that any congressional limits on personal, presidential control of the federal government violate the Constitution. This theory has been a favorite conservative legal theory for some time, was embraced by Project 2025, and indeed, the year 2025 has seen its full flowering: from President Trump firing the members of the U.S. Commission of Fine Arts (a purely advisory body that might have disagreed with some of his aesthetic choices for federal buildings), to arranging to have himself named the chair of the board of the Kennedy Center, to trying to wrest control of monetary policy away from the Federal Reserve. (When it comes to ordinary civil service jobs, don’t worry, the White House has you covered: Draft regulations claim that the 1978 Civil Service Reform Act, designed to protect the civil service from politicization, are “unconstitutional overcorrections” to past abuses.)
As we have argued in our brief in this case, the unitary executive theory is wrong. And if the Supreme Court allows President Trump to ignore the law and fire independent commissioners anyway, the consequences will reshape American government in ways its proponents may soon come to regret.
How the Unitary Executive Theory Misreads the Constitution
The unitary executive theory rests on two constitutional provisions. Article II’s Vesting Clause states that “the executive Power shall be vested in a President of the United States of America.” The Take Care Clause requires that the president “shall take Care that the Laws be faithfully executed.” From these provisions, proponents derive sweeping presidential authority over every federal official, including unlimited removal power.
It’s wrong.
The Vesting Clause doesn’t define executive power. It simply identifies who possesses it. As Professor Caleb Nelson, a legal scholar the the University of Virginia observes, “one must still figure out what ‘the executive power’ is.” He continues,
Executive power entails executing laws and judgments made by others, such as statutes enacted by Congress and judicial judgments rendered by courts. The President is not in charge of the content of those laws and judgments. Nor does the Constitution guarantee the President any particular means of enforcing them. To the contrary, the power to execute the law is itself subject to the law; executive officials are allowed to use only the resources that the law makes available for this purpose, in the way that the law allows them to be used.
The Constitution itself does help us figure out what “executive power” means in practice by giving the president specific duties and authorities. For example: the president signs and vetoes legislation. The president serves as Commander in Chief of the armed forces. The president grants reprieves and pardons for offenses against the United States. The president makes treaties with the advice and consent of the Senate. The president nominates ambassadors, judges, and other officers.
These are express constitutional powers. Without a constitutional amendment, Congress cannot transfer these powers elsewhere or insulate them from presidential control. Congress cannot delegate the power to veto legislation to some other official. Congress cannot create a “pardoning commission” to take away that power from the president (even though, right now, that seems like a good idea). Congress cannot divide command of the armed forces among multiple officials protected from presidential removal. These functions belong to the president because the Constitution assigns them to the office.
And, far from giving the president the power to disregard laws he views as infringements of his power, the Take Care Clause imposes a duty: the president “shall take Care that the Laws be faithfully executed.” When Congress enacts a statute providing that FTC commissioners may be removed only “for inefficiency, neglect of duty, or malfeasance in office,” that statute is the law the president must execute.
The unitary executive theory locates broad and unchecked presidential authority in these vague clauses. But the Constitution gives Congress explicit power to determine how the government is structured. You don’t have to be a constitutional scholar to understand how definitive Article I, Section 8 is. Congress is assigned the power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
So, when Congress exercised its constitutional authority under the “commerce clause” to create the FTC, it also exercised its authority under the Necessary and Proper Clause to determine how the FTC should operate. How laws are to be enforced is as much the prerogative of Congress as the substance of the laws themselves.
The Supreme Court unanimously upheld for-cause removal protection in Humphrey’s Executor v. United States (1935). Congress relied on this framework to create dozens of independent agencies – the Securities and Exchange Commission, the Federal Communications Commission, the National Labor Relations Board, and many others.
Congress structured the FTC as an independent, bipartisan body because the agency regulates competition and consumer protection across nearly every sector of the economy. The FTC’s investigative powers rank among the broadest in the federal government – the agency can compel documents, require testimony, and investigate business practices throughout the economy. This power should be apolitical – while Commissioners from different parties may have different economic and enforcement priorities, the FTC’s powers should not be used for partisan purposes or to advance unrelated ideological interests. Enforcement decisions – especially those that could favor established firms over new entrants or shield powerful industries from scrutiny – should rest on evidence rather than political pressure. The FTC’s structure has served the nation and Presidential administrations of both parties well.
The Current FTC Shows the Danger of Politicization
Recent events demonstrate what happens when independence gives way to politics. Following the removal of the Democrats from the Commission, the FTC has effectively ceased to function as an independent agency. The current FTC Chairman has even publicly stated he does not believe in FTC independence.
The Commission imposed conditions on the Omnicom-IPG advertising merger requiring commitments about the companies’ participation in advertising “boycotts” – but advertisers’ and their agencies’ media buys are a matter of editorial discretion with no relationship to market concentration, competitive effects, or consumer harm under the Clayton Act. Merger review properly focuses on whether a transaction substantially lessens competition. Conditions addressing unrelated political controversies exceed statutory authority and suggest that merger approval depends on political alignment.
The Commission convened a workshop titled “The Dangers of ‘Gender-Affirming Care’ for Minors” – a politically contentious topic with no connection to the FTC’s mandate to prevent unfair or deceptive commercial practices. The workshop featured no consumer complaints and advanced no enforcement action, serving only to inject the agency into a divisive social debate outside its jurisdiction.
Most troubling, the FTC opened an investigation into Media Matters for America after the nonprofit published reporting about advertisements appearing adjacent to antisemitic content on X (formerly Twitter), after Elon Musk, an on-again, off-again Trump ally, gained control of the platform. The Commission issued civil investigative demands seeking all documents related to Media Matters’ evaluation of media platforms, communications with advertisers and technology companies, comprehensive financial records, and complaints about its reporting. A federal district court found that “retaliatory animus was the but-for cause of the FTC’s” investigation and blocked it, and the D.C. Circuit affirmed, but that does not undo the harm. This investigation deployed the agency’s investigative authority as a weapon against protected speech critical of powerful political figures.
As former FTC officials have warned, “A system of competition law quickly loses its legitimacy when … an elected official can force the agency to file cases to harass political adversaries, to fulfill campaign promises to contributors (even worse, to make good on bribes), or to shield incumbent economic interests from challenge by new firms or business models[.]”
What Happens If President Trump Wins at SCOTUS
If the Supreme Court invalidates for-cause removal protection, dozens of independent agencies would lose their constitutional foundation. The President could fire commissioners at will for any reason or no reason at all. (Which to be clear, he has been doing all year. The question is whether it has been legal.)
But there’s another dimension. If the Court rules that the President has unlimited removal authority, that authority will not remain solely in Republican hands. A progressive president facing a federal government populated by Trump appointees could (and in light of President Trump’s reasoning, should) exercise the same power to clean house. Any commissioner at any agency could be removed and replaced on day one.
The next progressive President will have no choice but to use the tools that President Trump has consolidated in the White House. The extensive deregulation, climate policy rollbacks, weakened consumer protections, could all be reversed by a new administration exercising the very authority President Trump claimed. The FTC could aggressively enforce antitrust law against technology giants and healthcare monopolies. The FCC could restore net neutrality. The SEC could crack down on corporate fraud and require climate risk disclosures. The NLRB could strengthen worker protections.
Personally, I am looking forward to that day. But this is not an argument that the unitary executive theory is correct: just that it may be needed to fix its own abuses. It is also a warning to its proponents about what they are creating. Political power does not stay in the same hands forever.
Why A Limited Presidency Serves Progressive Causes Better
But while progressives might be tempted to embrace the powers President Trump seeks permanently – “Just think of all the good we could do!” – the better course (after the inevitable housecleaning) is re-imposing structural limits on executive authority.
Regulatory agencies insulated from political pressure can pursue long-term goals beyond election cycles. They can develop expertise in complex technical areas. They can maintain enforcement priorities even when politically inconvenient.
The FTC’s independence allowed the Biden administration to investigate politically powerful technology companies despite objections from prominent Democrats. Historically, the NLRB’s independence has permitted it to protect workers’ rights even when complicating relationships with business interests, and the SEC’s independence enables it to pursue securities fraud regardless of political connections.
A strong Congress is better for democracy than an imperial presidency. The Framers designed a system where Congress, representing diverse constituencies of voters, would be the primary source of policy. An all-powerful executive who can reshape government institutions at will concentrates too much authority in too few hands. It essentially recreates the absolute monarchy against which the founders rebelled. We should not have to wait for a “good” emperor to achieve progressive policy goals. Democratic governance works best when power is distributed, debated, and constrained by law. The current president, and the current Supreme Court, may not agree with this. But eventually it will be time to rebuild.