The Supreme Court’s Quiet Revolution: Expanding Presidential Power, One Ruling at a Time
In a move that could reshape the balance of power in Washington, the Supreme Court’s conservative majority, led by Chief Justice John Roberts, has been steadily—and controversially—expanding the authority of the presidency. But here’s where it gets contentious: this shift began long before Donald Trump’s tenure, yet his administration has become a testing ground for these sweeping changes. And this is the part most people miss: the Court is now poised to overturn a 90-year-old precedent that has long limited executive authority, potentially handing future presidents even greater control over federal agencies.
On Monday, the justices will hear arguments in a case that could dismantle the 1935 Humphrey’s Executor decision, which prohibits presidents from removing the heads of independent agencies without cause. Liberal Justice Elena Kagan hinted in September that the Court’s conservatives seem ‘eager’ to take this step. Already, Trump has fired numerous officials, including Rebecca Slaughter of the Federal Trade Commission (FTC), whose case is now before the Court, as well as leaders from the National Labor Relations Board, Merit Systems Protection Board, and Consumer Product Safety Commission.
Only two officials have survived removal attempts: Federal Reserve Governor Lisa Cook and Library of Congress copyright official Shira Perlmutter. The Court has signaled it may treat the Fed differently, but Trump has openly called for Cook’s removal over unproven allegations of mortgage fraud, which she denies. This raises a critical question: Should the president have unchecked power to fire independent agency heads, even when it risks economic instability or undermines regulatory oversight?
The push to expand presidential power aligns with the ‘unitary executive’ theory, a cornerstone of the conservative legal movement. Proponents argue that federal agencies, as part of the executive branch, must answer to the president—including the ability to fire their leaders at will. Justice Antonin Scalia famously declared in a 1988 dissent that the president holds ‘all of the executive power,’ not just some of it. This interpretation has gained traction under Roberts’ leadership, with the Court chipping away at restrictions since 2010.
In 2020, Roberts wrote that the president’s removal power is ‘the rule, not the exception,’ upholding Trump’s firing of the Consumer Financial Protection Bureau’s head. In 2024, he included firing power among the president’s ‘conclusive and preclusive’ authorities, beyond Congress’s reach. But here’s the twist: legal historians and even some conservative scholars argue that Roberts’ interpretation of history may be flawed.
Caleb Nelson, a University of Virginia law professor and former clerk to Justice Clarence Thomas, notes that the Constitution’s text and history on this issue are ‘far more equivocal’ than the Court suggests. Fordham University law professor Jane Manners and other historians have filed briefs urging the Court to reconsider its stance, though she admits, ‘I’m not holding my breath.’ Slaughter’s lawyers echo these arguments, asserting that limits on presidential power align with both the Constitution and U.S. history.
The Justice Department counters that Trump should be able to fire agency heads for any reason to advance his agenda, calling Humphrey’s Executor ‘egregiously wrong.’ Meanwhile, a secondary issue in the case could impact Cook’s future: even if a firing is deemed illegal, can judges reinstate the official? Justice Neil Gorsuch suggests fired employees might receive back pay but not reinstatement, which could force Cook out of her role.
The Court will hear separate arguments in January on Cook’s case, but the broader implications are clear: this isn’t just about Trump or individual officials—it’s about the future of presidential power and the independence of federal agencies. Is this expansion of executive authority a necessary correction or a dangerous overreach? Share your thoughts below—this debate is far from over.
