The Roberts Court is rewriting executive power to capture the regulators of corporate conduct while shielding the Fed from the president it doesn’t trust.
It took the Court ninety-one years to dismantle the administrative state’s shield of independence. Then it spent a single afternoon building a bespoke replacement for the central bank. In Trump v. Slaughter, the six-justice majority overruled Humphrey’s Executor v. United States, 295 U.S. 602 (1935) — the 1935 precedent that let Congress insulate multi-member commissions from at-will presidential removal. Chief Justice Roberts, writing for the majority, chronicled how the Federal Trade Commission (FTC) enforces some eighty statutes covering “almost every facet of the Nation’s economy,” and that work, the Chief held, is “the very essence of ‘execution’ of the law.” If the FTC executes the law, the argument runs, the President must have general administrative control of it. The for-cause removal limits Humphrey’s allowed were an unconstitutional fetter on the unitary executive.
Justice Gorsuch, concurring, stated the logic candidly. Independent agencies were repositories of “delegated powers that the President could not access with quite such ease,” and the Humphrey’s fiction was how Congress built those repositories. Reclaiming that delegated authority for the executive — in present circumstances, the executive the conservative legal movement has spent forty years building the architecture to empower — is part of a project whose outline is no longer even a secret.
Then the Court turned to the Federal Reserve. In Trump v. Cook, decided the same day, a different five-justice coalition carved the Fed out of the unitary executive, forbidding the President from firing Governor Lisa Cook without notice and an opportunity to be heard. The same Chief Justice who spent thirty-six pages dismantling agency independence in Slaughter suddenly discovered a constitutional bulwark against presidential removal in Cook. He grounded the carve-out in history and tradition, citing the First and Second Banks of the United States, the central banks Congress chartered in 1791 and 1816 to regulate the currency.
The history-and-tradition audit collapses the moment you read the record. Justice Thomas, dissenting in Cook, pointed out the fatal flaw in the Chief’s historical analogy: those banks “possessed no sovereign power.” They were private corporations with public charters. The modern Fed wields vast executive authority to regulate the largest financial institutions in the country, to set the cost of capital for the global economy, to enforce the consumer-protection rules the Dodd-Frank Act assigned to it, and to serve as the lender of last resort through the stress tests and capital rules. Roberts brushed past this inconsistency to preserve the Fed’s independence.
The carve-out tells you what the Slaughter principle is for. If the principle were really Article II’s general administrative control — if it were really the constitutional design the Roberts majority claims to be restoring — there is no reason to treat the Fed as different from the FTC. The Fed sets monetary policy, supervises banks, and regulates the financial system. If Humphrey’s Executor was wrong because the FTC exercises “the very essence of execution of the law,” the Fed exercises that essence more, not less. The Court has not explained why the constitutional principle stops at the Eccles Building, the Fed’s headquarters on Constitution Avenue. It does not have to, because the principle is doing rhetorical work, not analytical work.
The real reason for the exception is class interest. The justices who carved out the Fed’s independence do not trust the elected President to run monetary policy, and so they invent a historical bulwark where none exists. The politics are the jurisprudence.
This is the asymmetric-deployment pattern the Roberts Court has been running for years. Seila Law v. CFPB, 591 U.S. 197 (2020), extended unitary-executive logic to the Consumer Financial Protection Bureau but stopped short of taking on the Fed. Shelby County v. Holder, 570 U.S. 529 (2013), struck the Voting Rights Act’s coverage formula in the name of “the fundamental principle of equal sovereignty among the States” — but only to disable federal civil-rights enforcement, never to challenge comparable state constitutional violations when the politics cut the other way. The same shape of selective deployment is visible in the major-questions doctrine, in the non-delegation doctrine, and now in the unitary executive. What reads as constitutional principle is selection by politics. The Court selects which constitutional principle to apply, and applies it to whichever institution the politics of the moment require.
The substantive effect is an executive with at-will removal over the FTC, the Securities and Exchange Commission, the National Labor Relations Board, the Federal Communications Commission, the Consumer Financial Protection Bureau, and the rest of the alphabet soup of regulatory agencies that police corporate conduct — with the Fed, the intelligence community, and the Federalist-Society-favored institutions carved out. It is an executive the conservative legal movement trusts. It is also an executive the next president will inherit, and the one after that. The unitary executive the Roberts Court is constructing works for whichever party holds the White House. It works better, in the short term, for the party whose lawyers drafted the doctrinal architecture and whose justices wrote the opinions. The carve-out is a pragmatic political judgment about the current President — that much the Court’s critics in the legal academy have noticed. The constitutional principle and the carve-out from it sit comfortably in the same editorial. The principle is the cover. The politics is the engine.
Gorsuch’s call to resurrect the non-delegation doctrine in Slaughter carries the same selective burden. The doctrine will supposedly constrain Congress from handing rule-making power to agencies the President can no longer control. Justice Kagan noted in a 2001 Harvard Law Review article that Humphrey’s enabled Congress’s delegation creep. But the intelligible-principle requirement is a weapon aimed at the agencies that regulate business, not at the agency that manages capital. The Court’s non-delegation revival stops at the doors of the central bank.
The Court did not restore the separation of powers on Monday. It dismantled a ninety-year-old doctrine of administrative independence only to rebuild it as a class-based privilege. The President can now fire the officials who police corporate monopolies at will. He cannot fire the officials who manage the central bank without proving cause. The Constitution, it turns out, is perfectly adaptable to the management of the administrative state — as long as the state is managing the right kind of power. The Constitution the Roberts Court claims to be restoring is the one it has decided to restore today.