A President’s Right to Say ‘You’re Fired’

The federal government needs to be trimmed. If you spent 35% more than your earnings you'd go bankrupt...the Federales is no different. The Dark Lord may have gone about it wrong with DOGE, but giving the executive branch the power to trim may be a good thing in the long run. Not a perfect thing, but better than the uncontrol spending spree we currently enjoy.

A President’s Right to Say ‘You’re Fired’

‘Independent’ agencies are politically corrosive, and the Supreme Court can reverse its 1935 error in Humphrey’s Executor.

By The Editorial Board, WSJ

Dec. 5, 2025 5:54 pm ET

Ninety years ago, a unanimous Supreme Court blessed what has become effectively a fourth branch of government: the unaccountable bureaucracy. Washington today is dotted with stone headquarters for “independent” agencies, where government workers make regulations and enforce laws, insulated from voters and democracy.

In a potential landmark case, the Justices on Monday will consider whether, and how, to rectify that historic mistake. The argument in Trump v. Slaughter has broad implications, though it sounds narrow: Can President Trump fire members of the Federal Trade Commission at will?

The constitutional answer is yes: There’s no fourth branch of government. A trickier problem will be mopping up 90 years of a Progressive Era mess.

Woodrow Wilson can’t be blamed for everything, but he disliked the Founders’ constitutional vision, and the 1914 law he signed to set up the Federal Trade Commission reflected his ideas about governance by an expert class. The FTC has five commissioners serving staggered seven-year terms. While they’re nominated by the President, the law says they may be removed only for cause, such as malfeasance. Does that mean they answer to . . . nobody?

The Supreme Court endorsed this scheme in a 1935 case, Humphrey’s Executor. That dispute involved a deceased FTC commissioner, ousted by FDR, whose estate sought back pay. The Justices upheld the FTC’s insulation from Presidential control, saying Congress designed it as a “body of experts,” with powers “predominantly quasi-judicial and quasi-legislative.” A pinch of Article I, with a dash of Article III? This is not James Madison’s recipe.

That casual approach to separation of powers hasn’t stood the test of time, and the High Court lately refused to extend Humphrey’s. President Trump has directly challenged it by firing FTC Commissioner Rebecca Kelly Slaughter. Lower courts ordered her reinstated. A similar case is percolating on Mr. Trump’s firing at the National Labor Relations Board.

Mr. Trump’s brief argues Humphrey’s was wrong in 1935, and it’s more wrong now. “The FTC has always exercised executive power,” it says. But its remit is even broader today. The FTC administers or enforces some 80 laws, regulating “movie tickets,” “meat products,” “contact lenses,” and more. “Today’s FTC can bring civil enforcement suits against private parties, promulgate binding rules, issue final orders in administrative adjudications, and investigate potential violations of the law.”

Ms. Slaughter’s brief makes two replies. She points to earlier historical examples, starting with a war debt commission set up in 1790. It had five members. Three were Cabinet officers, fireable by a President. Two weren’t, because they were the Vice President and the Chief Justice, though there’s scholarly debate about whether a President could have booted them off the commission.

In any case, this is no mandate from the Founders for today’s alphabet soup of “independent” agencies that put binding rules on citizens and regulate most of the economy. This gets to Ms. Slaughter’s other argument: That so much of modern Washington is built on the constitutional sand of Humphrey’s, that to overturn it “at this late date” would “profoundly destabilize” American governance.

“Congress structured dozens of administrative agencies in reliance on the rule of Humphrey’s Executor,” she says, “assigning the Executive Branch power that it otherwise might never have conveyed.” Exactly. Lawmakers gave agencies vast power, believing they’d be “independent.” But in practice they aren’t. See Biden FTC Chair Lina Khan or current Federal Communications Commission Chair Brendan Carr.

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The exception may be the Federal Reserve. The Court’s majority signaled this year that an end to Humphrey’s need not affect the Fed’s monetary policy, since it’s a “uniquely structured” entity with a “distinct historical tradition.” The Fed also regulates the financial system, and Congress could hive off that job from monetary policy.

A disease of modern politics is executive overreach and legislative timidity, so giving the President direct control of these agencies might seem a strange cure. Yet reversing the constitutional aberration of Humphrey’s could prompt Congress to rethink how much power it has ceded. When an agency goes haywire, voters will at least know who to blame.

Overly optimistic? Perhaps, in the short run. But the Justices play the long game.