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Last week, the Supreme Court ruled that the Constitution grants the president broad power to remove the heads of “independent” federal agencies. Chief Justice John Roberts’ opinion for the 6–3 majority largely framed the decision, Trump v. Slaughter, as tightening presidential control over agencies that safeguard key aspects of the national economy.
Greater presidential control has upsides and downsides—in dissent, Justice Sonia Sotomayor predicts that the ruling will concentrate unprecedented and possibly dangerous levels of power in the president’s hands. But the opinions on both sides miss a key point: In some circumstances, the decision will cause the president to have basically no control over affected agencies, particularly when the president has an ambitious agenda for the agency.
Removal protection was one of the mutually reinforcing design features of independent agencies that promoted stability and bipartisanship. Those agencies are often structured as multimember commissions with staggered, time-limited terms. Incoming presidents therefore inherit holdover commissioners, nominating new members for Senate consideration as vacancies emerge. Since commissions also typically contain only a certain number of members from any one political party, the two parties would often collaborate to confirm nominees from each.
Slaughter disrupts this design and largely eliminates its incentives for bipartisanship. Presidents will now routinely remove any commissioners from the opposing political party, as evidenced by President Donald Trump’s numerous firings. When the presidency changes hands, the new president will then inherit some agencies with commissioners only from the opposing party. If the Senate is controlled by the opposing party, it will have little incentive to confirm the president’s nominees.
The new president will thus be faced with a choice: Either maintain commissioners whose policy views do not align with his own, or fire those commissioners and risk an agency that lacks a quorum needed to function (or perhaps any commissioners at all). Notably, the Federal Vacancies Reform Act—which provides for temporary heads of executive agencies when the Senate has not yet confirmed a permanent replacement—does not apply to most multimember commissions.
As a result, the Supreme Court’s decision will result in some presidents having essentially no control over the agencies in their own executive branch, the opposite of the court’s stated rationale for its decision. And this structural limitation is imbalanced: Presidents who want an agency not to function can simply remove its commissioners, while presidents wanting agency action are most likely to be stymied.
We’ve already seen this dynamic begin to play out. Anticipating the court’s decision in Slaughter, Trump fired members of several independent agencies last year, denying them a quorum. As a result, key executive branch functions ground to a halt for months: The National Labor Relations Board was no longer able to adjudicate certain union disputes, for instance, and the Merit Systems Protection Board could not issue final decisions in cases brought by federal employees claiming they had been unlawfully fired. And the problem could get worse under a divided government. In 2029, the incoming president may be a Democrat, while the Senate majority could remain in Republican hands. That president would likely be unable to appoint their preferred members to the Federal Trade Commission or some other multimember commissions whose work is dear to the party’s platform. With this Supreme Court decision, the next president could be greatly hamstrung before even taking office.
Perversely, the new legal regime can also give an outgoing president enormous control. To insulate their policy agenda, an outgoing president can now fire any members of a multimember commission on his way out the door, including members of the incoming president’s party that the outgoing president left in office to maintain a quorum. If they don’t have a cooperative Senate, the incoming president could struggle to reappoint or replace them. In other words, Trump could purge federal agencies on his last day in office, leaving them without a quorum to do much business when his successor enters the White House. With a hostile Senate, a quorum might never be restored.
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The court should have considered all of this before restructuring the executive branch and upsetting decades of established practice. It apparently didn’t. So what now?
In theory, the Supreme Court itself could rule that other features that restrict presidential control—like the inability to fill temporary vacancies—are also unconstitutional. But this may be a stretch given the Constitution’s explicit role for the Senate in presidential appointments. And by further expanding the president’s constitutional authority, such a ruling could have much broader and potentially harmful long-term effects. Moreover, because appointment restrictions have not been a long-standing legal target, unlike removal restrictions, any movement here will likely take years to develop.
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The more plausible fix may lie with Congress. At a minimum, it could extend the Vacancies Act to multimember agencies, allowing a president to appoint temporary leaders without Senate confirmation and thus enable an agency to still function when it lacks sufficient members. (The act currently applies to traditional executive agencies; that is why there are acting secretaries of state, defense, and other single-head agencies right after a presidential transition.) For at least some commissions, Congress should consider full conversion to single-head executive agencies, eliminating the multimember and bipartisan structure that no longer operates as intended.
Reforming the historic structure of multimember agencies will entail trade-offs but is worth considering as this new landscape takes shape. Still, it is unlikely that Congress will fix this problem as long as Trump is in office, because the president has first-mover advantage in removing opposing-party commissioners who could lock in his agenda through a future administration. The conditions for compromise could emerge if Democrats take the Senate in this year’s midterms, which may lead to some multimember agencies losing their quorums over the following two years.
For the present moment, we’re left with a Supreme Court decision that upsets decades of settled expectations. In her dissent, Sotomayor predicts that the ruling will cause chaos by creating tremendous legal uncertainty. The chaos caused by hamstringing agencies that play a key role in regulating the national economy could be even worse.
