Blue Brief 2025-2026

The key premise is the second — that the power to remove inheres in the broader grant — and on this point the Court surveyed the extensive historical record supporting the conclusion that the President could remove executive branch officers without Congressional consent. The question whether Congress could limit the removal power rather than requiring Congressional consent to removal was answered in Myers v. United States , which surveyed Founding- and Reconstruction-era history. Myers held that Congress could not qualify the President’s power to remove executive officers. Nine years later, in Humphrey’s Executor v. United States , the Court backtracked on the odd ground that some officers may perform executive functions without exercising executive power. The agency at issue was the same as in Slaughter — the FTC — and the Court held that Congress could qualify President Roosevelt’s power to remove a commissioner owing to the Commission’s quasi-judicial and quasi-legislative nature. Slaughter gave Humphrey’s Executor what the Chief Justice called “a respectful burial,” and the headstone reads as a holding: “Subordinates who exercise the President’s power are subject to removal by him.” Cook is important because it avoids the potentially disastrous politicization of monetary policy. Slaughter is important because it moves the tectonic foundations of the federal government, with uncertain scope and consequences. Replacing a spoils system with a professional civil service was a major achievement. Is that achievement at risk from a unitary executive? Chief Justice Taft wrote in Myers that its holding was compatible with the

merit system but did not explain how or why, and the answer is not self-evident. If Slaughter ushers in a new era of payoff appointments to even ministerial jobs, it will betray its promise of accountability. Justice Gorsuch’s concurrence and Justice Sotomayor’s dissent asked whether Congress would have delegated so much power to agencies if legislators knew they were just handing power to the President. Probably not. Too late now, however. Slaughter does not eliminate the myriad tentacles Congress has sent wending through American life; it simply makes it easier to change what they grasp by concentrating power in the President. Justice Gorsuch’s libertarian tendencies led him to urge that the Court continue to rein in improper Congressional delegations of power to avoid the evils of such a concentration of power in the President. He is right about that. The alternative is a world in which presidential whims or vindictiveness can thwart or approve mergers, grant or revoke broadcast licenses, dictate terms of employment, condemn companies as supply-chain risks based on fits of pique, and thousands of other things. A government that practices extortion in pursuit of kleptocracy is an unappealing prospect, but it is not fanciful, and Slaughter has the potential to increase the risk of that dystopian future. The remedy Justice Gorsuch proposes is a revitalized nondelegation doctrine. Even if one would have preferred that the Court had eschewed the path taken in Slaughter , there are good reasons to support the view that the journey, now started, should be finished.

David McGowan

UNIVERSITY OF SAN DIEGO SCHOOL OF LAW | Faculty Review of 2025-2026 U.S. Supreme Court Term | Page 19