The Wall Street Journal’s editorial board wants to gut the regulatory state, but only the parts it doesn’t like. Monday’s twin Supreme Court rulings handed it a constitutional principle and a constitutional exception, both in the same morning. The board is celebrating the principle and shrugging at the exception. The principle and the exception contradict each other. The board knows it. The board does not care.
In Trump v. Slaughter, a 6–3 majority killed Humphrey’s Executor and let the President fire Federal Trade Commission commissioners at will. Chief Justice Roberts, writing for the majority, held that the FTC exercises executive power and that its commissioners are therefore subject to Article II. “From the start, Humphrey’s was tethered to a highly circumscribed and almost fictional view of the FTC’s role,” Roberts wrote. The board called it abandoning “the fiction of independent agencies.” The ruling was about ninety years overdue.
Decided the same morning, Trump v. Cook told a different story. The same Chief Justice, this time joined by Justices Sotomayor, Kagan, Kavanaugh, and Jackson, blocked President Trump from firing Federal Reserve Governor Lisa Cook over unproven mortgage-fraud allegations. Roberts held that Fed governors enjoy “for cause” removal protections and went further, declaring the Fed occupies unique status in the federal government because of its monetary policy role. The board called the carve-out “pragmatic.”
Pragmatic is not a constitutional doctrine. The board’s own framing admits the rot: Roberts and Kavanaugh, the editorial concedes, “simply don’t trust Mr. Trump to run monetary policy.” That is a political judgment about this President, not a constitutional principle about the office. In Slaughter, the six-Justice majority decided the President can be trusted to direct antitrust and consumer-protection enforcement. In Cook, a five-Justice coalition decided the President cannot be trusted with the central bank. The doctrine — unitary executive here, monetary independence there — is the costume, not the conviction.
Justice Thomas saw exactly what was happening. In his Cook dissent, he demolished the historical foundation Roberts used to insulate the Fed. Roberts grounded the Fed’s independence in the congressional charters of the First and Second Banks of the United States. Thomas pointed out that those banks “possessed no sovereign power” — they were depositories and lenders, not sovereign regulators setting monetary policy and supervising the entire banking system. If the FTC’s enforcement authority over consumer protection makes its commissioners removable at will, the Fed’s vastly greater authority over the financial system must do the same. The board concedes “Justice Thomas makes a powerful case on the law.” He makes the only coherent case on the law. The board’s silence on Thomas is the silence of an institution that knows its principle cannot survive the application to the one institution it actually cares about.
Roberts’s own language in Cook makes the dodge explicit. He warns that without for-cause protection, “any perceived or alleged misstep (past or present) could provide a ready pretext for a Governor’s removal — a fact that he would surely know, and that would surely weigh on him as he decided what to say and how to vote.” That is a legitimate concern about political interference with monetary policy. It is also a concern that applies with equal force to every independent agency. The FTC commissioner who knows the President can fire her for any reason at any time will think twice before casting a vote the White House dislikes. Roberts treats this chilling effect as constitutionally intolerable at the Fed and constitutionally irrelevant at the FTC. He does not explain the difference because he cannot.
The board’s asymmetry could not be plainer. It wants executive control of the agencies whose enforcement it opposes — the FTC, the SEC, the NLRB, the EPA, the FCC — and independence for the one agency whose monetary policy aligns with its economic preferences. The board does not argue this asymmetry. It cannot. Instead, it offers a mumbled endorsement of “pragmatism” while ignoring the most powerful legal critique in the case.
The Gorsuch concurrence in Slaughter exposes the longer game. He calls for the Court to resurrect the “dormant non-delegation doctrine” — a principle that, if revived, would invalidate the open-ended grants of authority that underpin the entire regulatory state. The board’s editorial quotes this call approvingly, apparently unaware that the same doctrine would gut the FTC Act, the Clean Air Act, the Clean Water Act, the Fair Labor Standards Act, the National Labor Relations Act, the Securities Exchange Act, the Affordable Care Act, and the Dodd-Frank Act’s consumer protection provisions. The board is signing on to a constitutional project that would destroy the regulatory apparatus on which its own preferred economic order depends. That the board does not notice the contradiction is telling.
The immediate practical result is no mystery. The President can now fire the chairs of the FTC, the NLRB, the SEC, the FCC, and the rest of the multi-member commissions, at will and without cause, and replace them with loyalists who will stop enforcing the laws those agencies administer. The board’s editorial does not name a single statute that will go unenforced, nor a single consumer, worker, or small business that will lose protection. It does not need to. The board’s real concern, as always, is who controls the monetary levers. On that score, the editorial got exactly what it wanted: a Supreme Court that hands the President a cudgel over market regulation while shielding the Federal Reserve behind a “pragmatic” firewall.
The Wall Street Journal’s editorial page has spent the past century championing free markets and limited government. But the Constitution does not bend to market preferences. The board’s two-faced reading of these rulings — constitutional principle for the agencies it disdains, “pragmatic exception” for the one it protects — leaves behind not a philosophy of law, but a philosophy of convenience. Justice Thomas gave the board a clear constitutional path. The board chose the path that serves its bottom line.
That should worry you regardless of whether you think Trump should be running the Fed. Because the next time a five-Justice majority decides a different agency is “too important” for presidential control — or not important enough — they will have Cook and Slaughter standing side by side to justify whatever outcome they prefer. The Constitution is supposed to provide the rule. Monday, the Court made itself the rule — and dressed it in the language of history, tradition, and “pragmatism.”