Bhawna Motwoni is a third-year J.D. candidate and Technology Law and Policy Scholar at Georgetown University Law Center. She currently serves as a legal intern to the Chief Administrative Law Judge at the U.S. International Trade Commission and will join Goodwin Procter’s Silicon Valley office as a litigation associate after graduation.
Under current law, commissioners at independent federal agencies serve fixed terms and can be removed by the President only “for cause,” meaning for specific reasons such as misconduct or serious performance failures, not simply because the President disagrees with their policy views.
For nearly a century, these protections, upheld in the Supreme Court’s 1935 decision in Humphrey’s Executor, have been the backbone of agency independence, which has allowed experts to enforce laws and regulations without constantly looking over their shoulders at the White House. Congress designed this system to strike a balance: protecting agency leaders from arbitrary presidential dismissal while still allowing removal for clear misconduct or incapacity.
This balance is now under attack. Recent Supreme Court decisions have cast doubt on whether these removal protections are constitutional at all, and President Trump has acted aggressively, removing Democratic commissioners Rebecca Slaughter and Alvaro Bedoya from the Federal Trade Commission (FTC) and attempting to oust Federal Reserve (Fed) governor Lisa Cook.
These actions have resulted in two major cases this term—Trump v. Slaughter and Trump v. Cook—where the Court has the opportunity to either uphold the independence of these agencies or significantly reduce their autonomy by placing them under direct presidential control.
At oral argument in Slaughter, counsel for the President advanced a sweeping interpretation of presidential control over the executive branch. The President’s removal power over officers exercising executive authority, he argued, is “conclusive and preclusive,” a constitutional power that Congress cannot meaningfully limit and that courts cannot second‑guess. That reading would effectively treat Humphrey’s Executor as obsolete and render traditional independent commissions “at will” in all but name.
Counsel for Commissioner Slaughter urged a different approach. He acknowledged that some tasks such as core foreign‑affairs decisions, commander‑in‑chief duties, and perhaps certain criminal‑enforcement choices are uniquely presidential and must remain under direct control. However, he contended that FTC commissioners are performing a different function—implementing statutes through rulemaking and adjudication rather than exercising the President’s own constitutional prerogatives.
The Justices did not divide neatly along partisan lines during the argument. Justices Thomas and Alito appeared comfortable with a robust Article II theory that leaves little room for statutory removal protections. In contrast, others, including the Chief Justice and Justice Barrett, pressed for workable boundaries and expressed unease with a theory that would unsettle the basic architecture of the regulatory state without any limiting principle.
The most plausible reading of the argument is that several members of the Court are looking for a practical way to draw lines, that is, a way to distinguish powers that are so central to the presidency that officials must serve at the President’s pleasure, and tasks that Congress may still protect from daily political interference.
Cook brings those concepts into sharp focus. The Federal Reserve is a quintessentially hybrid institution: it sets interest rates, supervises large financial institutions, and acts as lender of last resort. Its legitimacy and the stability of financial markets depend on a perception of institutional expertise and relative insulation from short‑term electoral pressures.
In practical terms, that independence affects everything from mortgage rates and credit card costs to the Fed ability to respond swiftly to financial crises without fearing that a president will fire its governors for making unpopular but necessary decisions. Against that backdrop, the President’s attempt to remove a sitting governor based on alleged discrepancies in old mortgage documents forced the Court to confront not whether Fed governors are removable at will—the administration conceded they are not—but what limits the “for cause” standard and basic procedural fairness impose on presidential efforts to remove them in practice.
During oral argument, the Court was notably skeptical of the President’s position. A broad majority of Justices questioned whether the asserted grounds for removal constitute genuine cause and emphasized the glaring absence of process. Chief Justice Roberts characterized the alleged mortgage issues as minor and possibly inadvertent, Justice Barrett pressed on the lack of any opportunity for Governor Cook to respond, and Justice Kavanaugh warned that the administration’s theory would “weaken, if not shatter, the independence of the Federal Reserve.”
Both sides also accepted that the Fed is not just another executive agency. Counsel for the President acknowledged that pure policy disagreement with the President would not be valid cause for removing a governor, and did not challenge the constitutionality of the for‑cause provision itself. Counsel for Governor Cook emphasized that Congress structured the Fed’s independence precisely to prevent presidents from manipulating monetary policy for short‑term political gain.
Taken together, these exchanges make a blanket rule of unfettered presidential removal hard to square with the Court’s instincts evident during the argument.
In light of Slaughter and Cook, two futures for independent agencies look plausible. One envisions a sharp shift towards granting the President complete control. Under this model, principal officers who exercise executive functions would be removable at will, subject only to modest procedural constraints. In this scenario, Humphrey’s Executor would be substantially, if not explicitly, displaced for most multi‑member commissions, severely limiting Congress’s ability to confer genuine tenure protection.
The FTC, FCC, and other commissions would still exist on paper, but their members could be removed whenever they defy the President. The true constraint would be political, not legal. Independence would have to be rebuilt indirectly, through design strategies like splitting enforcement from adjudication so that some decisions are made by more insulated officials and relying on statutory procedures that slow removal and raise its political cost, even if they do not ultimately bar it.
More plausibly, the Court may adopt a middle‑ground approach that draws lines between “uniquely presidential” powers and ordinary administrative work. In this functional framework, core foreign‑affairs decisions, commander‑in‑chief responsibilities, and some elements of criminal enforcement would be treated as conclusively presidential and therefore beyond the reach of statutory removal constraints.
On the other hand, functions like adjudication, licensing, and rulemaking would be classified as ordinary administration, where Congress retains greater flexibility to structure independence. Under this compromise, the President would likely have a freer hand over front‑line enforcement of laws, but agencies would retain more independence when they are acting like judges or subject-matter experts rather than political lieutenants.
Within such a framework, the Fed’s work on interest rates and financial stability would be understood as technocratic economic management rather than an expression of the President’s own prerogatives, and thus remain comparatively insulated.
Regardless of the Court’s ultimate choice between these paths, Slaughter and Cook make one point abundantly clear—that constitutional doctrine alone will not preserve a broad, open‑ended category of “independent agencies.” A Court skeptical of generic tenure protections instead seems to be inviting narrower, function‑specific rules.
If Congress wants agencies that can stand up to the President when enforcing the law, it will need to write clearer statutes by spelling out which jobs are truly presidential and which are not; tightening “for cause” standards to mean concrete misconduct or unfitness rather than vague dissatisfaction; and building in basic procedures like notice and opportunity for officials to respond before removal. The future of agency independence will turn on whether lawmakers are willing to engage in this detailed and careful work of statutory design.
Agency independence is vital for a fair and inclusive media and communications landscape. If the agencies like the FCC that regulate the internet, protect consumer data, and oversee media mergers become purely political tools, the public loses its seat at the table.
Depending on what the Court decides, the burden is likely shifting to Congress. If we want independent agencies, Congress should write sharper laws that clearly define when a President can—and cannot—interfere with the agencies whose job it is to protect consumers and our democracy. Congress must find ways to ensure that independence is as strong as possible.
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