The outcome in Trump v. Slaughter, which the Supreme Court will hear today, could not be more preordained. Slaughter involves a struggle over presidential power that has animated many prominent Republican lawyers and judges since the 1980s. And this peculiar faction of right-wing lawyers and judges now controls the Court itself.
Slaughter is one of the most significant milestones in the Republican justices’ project to remake America’s separation of powers. In Slaughter, the Court is expected to strip Congress of most of its power to create “independent” federal agencies that have some freedom to act in ways that the president may not like. Trump’s arguments in Slaughter closely track the Republican justices’ arguments in Trump v. United States (2024), the decision permitting the president to commit crimes.
Meanwhile, an earlier, separate line of cases, that the Court’s Republican majority also championed, shifted power away from the executive branch and toward the judiciary, permitting the Supreme Court to veto federal policies created by the executive if a majority of the justices believe those policies are too ambitious. These cases often involve a newly created legal doctrine known as “major questions.”
The Court, in other words, is engaged in a wholesale rethinking of the separation of powers. Some parts of this project seek to transfer power away from Congress and to the president. Other parts seek to transfer power from Congress and the president to the judiciary. And none of this project has more than the most tenuous grounding in the Constitution’s text.
The precise issue before the Court in Slaughter is whether President Donald Trump may fire Rebecca Slaughter, one of five commissioners on the Federal Trade Commission. By law, members of the FTC may only be removed “for inefficiency, neglect of duty, or malfeasance in office.” But Trump does not claim that Slaughter was neglectful or malfeasant. Instead, he believes her views are “inconsistent with my Administration’s priorities.”
If you’re holding out hope that Slaughter might prevail, don’t. The Republican justices already ruled last September that Trump could, in fact, fire her (although that September order was technically temporary). While the Court is now going through the motions of reading briefs and holding an oral argument before it issues its final ruling against Slaughter, it is unlikely that the outcome in this case will change.
The case turns on something known as the “unitary executive,” a legal theory that had minimal support on the Supreme Court a generation ago. One of the ur-texts laying out this theory is Justice Antonin Scalia’s dissent in Morrison v. Olson (1988), a dissent that no other justice joined — but that all six of the current Court’s Republicans now view as gospel.
Scalia’s Morrison dissent focused on a provision of the Constitution stating that “the executive power shall be vested in a President of the United States of America.” According to Scalia, “this does not mean some of the executive power, but all of the executive power.” And thus it follows that the president must have full control over — including the power to fire — any government official who wields power that is “executive” in nature.
One problem with this unitary executive theory is that it is far from clear which governmental powers should qualify as “executive.” The Republican justices, for example, all agree that the power to prosecute crimes is a “quintessentially executive function.” But, for much of US history, federal prosecutions were often conducted by private attorneys or by judicial appointees, not by members of the executive branch. Current law still permits federal judges to appoint prosecutors under some circumstances.
Similarly, at least some members of the Court have tried to justify the major questions doctrine as necessary to ensure that Congress, and not the president, makes the most important policy decisions that shape the national economy. But the very first Congress granted sweeping delegations of power to executive branch officials. So the Court’s newly imposed limits on executive policymaking are much more grounded in vibes than they are in historical practice or actual law.
The Court, in other words, is fundamentally reworking the balance of power among the three branches based on vague constitutional provisions and dubious legal theories with little grounding in history. But all six of the Court’s Republicans appear committed to this project. So it is unlikely to end any time soon.
You can read Ian's full story, including more on how the Court is empowering itself as well as Trump, on the Vox site here.
