When a federal district judge ruled on March 1 that President Donald Trump could not remove the head of the Office of Special Counsel, Hampton Dellinger, it seemed like a huge setback for the administration. In a 67-page opinion, Judge Amy Berman Jackson stressed that Congress had made that whistleblower-protection agency independent of presidential control because it could not otherwise perform its function of preventing and policing corruption in the executive branch. Several days later, the District of Columbia Circuit Court of Appeals lifted that injunction pending appeal, leading Dellinger to drop his lawsuit and accept his dismissal.
Similar legal challenges are continuing, but the legal resistance to the second Trump administration should be careful what it wishes for because district court rulings are inevitably appealed and the buck always stops with the Supreme Court. The justices had already declined to intervene in Dellinger v. Bessent without any ruling on the merits because, at that point, Jackson had only entered a temporary restraining order that was about to expire anyway, but the writing is increasingly on the wall. As Justice Neil Gorsuch wrote in dissent from his colleagues’ nonaction, federal courts’ “equitable remedies” (such as injunctions) are limited to those available when the Judiciary Act of 1789 was passed and that by 1888, it was “well settled that a court of equity has no jurisdiction over the appointment and removal of public officers.”
The issue boils down to the meaning of two short clauses in Article II, the part of the Constitution that establishes the executive branch. First, the very first sentence of that article reads: “The executive power shall be vested in a President of the United States of America.” Second, the most important of the few enumerated duties of this president is that “he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.” If all of the power to execute the laws that Congress passes and to appoint federal officials resides in one person who is the head of the executive branch, how can there be executive-branch people out there who are unaccountable to that person?
Even if Congress creates all federal agencies, which is why the president can’t shut down the Department of Education by executive order, they can’t just be a free-floating extra-constitutional nebula. And since nobody is arguing that, say, the Securities and Exchange Commission is actually part of the legislative or judicial branch, that brings us back to the constitutional directive that all executive power is vested in one person: the president.
Now, we may not like that logic at a time of dysfunctional governance and an imperial presidency. Indeed, the presidency, even under George Washington, was never intended to be such a powerful office. But the growth of the administrative state and the gradual shifting of federal power to the executive branch, in part because Congress can thus pass the buck and avoid making hard political choices, have made our “chief magistrate” into an awesome figure. The parties take turns not liking that conclusion, depending on whose standard-bearer is in the White House, but their cynical attitudes don’t change the fact that “unitary executive theory” isn’t some Federalist Society concoction or MAGA power grab but an accurate description of our system of government. That the executive branch now commands much more authority than it’s supposed to doesn’t change a structure wherein the president is supposed to control the executive branch.
This dynamic is now coming to a head with the clash over Trump’s removal of many officials, both agency heads and middle managers. Reducing the latter category, which has been a focus of the Department of Government Efficiency’s efforts to streamline government, involves tactics such as buyout offers and letting go of new hires on probationary periods that were part of, for example, the Clinton administration’s “Reinventing Government” initiative. And there’s other litigation regarding the reclassification of workers into Schedule Policy/Career (called Schedule F in the first Trump administration) and collective bargaining, which hamstrings presidential power in ways that even President Franklin Delano Roosevelt foresaw when that champion of organized labor decried the idea of public sector unions.
Describing those legal machinations is beyond the scope of this essay, but the more constitutionally significant battles involve the removal of principal officers of those so-called independent agencies — which are a contradiction in constitutional terms because there is no fourth branch of government insulated from the others. For example, in addition to Dellinger, Trump has fired members of the National Labor Relations Board, the Equal Employment Opportunity Commission, and even the Federal Election Commission. Most of them are contesting their removal in court. (The FEC commissioner at issue, Ellen Weintraub, was serving in the 23rd year of a six-year term — rivaling Mahmoud Abbas’s 20-plus years of a four-year term at the helm of the Palestinian Authority — so she is hardly in a position to complain about procedural niceties.)
All of these grandees believe their firings to be unconstitutional because of a 1935 Supreme Court precedent, Humphrey’s Executor v. United States, that protects certain officers from being fired for anything other than malfeasance or incompetence. That 90-year-old decision, involving Roosevelt’s attempt to fire a member of the Federal Trade Commission, held that heads of agencies wielding “quasi-legislative or judicial” power are insulated from presidential removal over mere policy differences or a desire to install loyalists.
Half a century later, in the 1988 case Morrison v. Olson — involving the appointment of an independent counsel to investigate a contretemps that began with House subpoenas sent to EPA Administrator Anne Gorsuch (the current justice’s mother) — the court extended Humphrey’s Executor to nearly all high-ranking federal officials. Justice Antonin Scalia, then in just his second term, was the only justice who disagreed with that ruling, and boy, did he make himself heard. Arguing that the presidential removal power was essential to checking government abuses and ensuring political accountability, Scalia’s scorching dissent showed how the congressional infringement on the separation of powers here wasn’t even a close call:
Frequently, an issue of this sort will come before the court clad, so to speak, in sheep’s clothing: The potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.
Scalia’s solo dissent has largely come to be accepted as correct, which is why Congress allowed the independent counsel statute to expire in 1999. (Had Scalia’s opinion prevailed a decade earlier, there would not have been a Ken Starr investigating President Bill Clinton.) Then, in 2020, the Supreme Court found Morrison to be a narrow exception that applied only to inferior officers, meaning that the president could still remove most, if not all, department heads. That case, Seila Law v. Consumer Financial Protection Bureau, and Collins v. Yellen the following year were just the latest in a Roberts court series that has read Humphrey’s Executor narrowly, refusing to let Congress restrict the president’s personal personnel power.
The whittling away of Humphrey’s Executor seems to be bringing the court back to Chief Justice William Howard Taft’s tour de force from the previous decade, Myers v. United States. In Myers, the court held that the president’s removal power flowed from the text of Article II, which was the reading understood and approved by the First Congress. Accordingly, Congress couldn’t limit the presidential removal of any executive branch officer he or his predecessor had appointed with the Senate’s advice and consent. Three justices dissented from that ruling, the ones appointed by President Woodrow Wilson, the father of bureaucratic governance and grandfather of the modern administrative state.
And so, acting Solicitor General Sarah Harris notified the Senate last month that “the Department of Justice has determined that certain for-cause removal provisions that apply to members of multi-member regulatory commissions are unconstitutional and the Department will no longer defend their constitutionality.” She referred specifically to the FTC, NLRB, and Consumer Product Safety Commission, but the principle applies across the board. Her letter represents the culmination of decades of work by the conservative legal movement to restore the unitary executive — which, contrary to media alarmism, answers the question of who possesses executive power, not that power’s scope. Because Article II vests the president alone with executive power, it is the president alone who exclusively wields power over executive agencies.
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Article II authority “generally includes the power to remove executive officials,” Chief Justice John Roberts wrote in Seila Law, and such power is necessary to ensure the execution of federal policy. Without the ability to remove executive branch officers, Roberts warned, “the President could not be held fully accountable for discharging his own responsibilities; the buck would stop somewhere else.”
In other words, the Left is playing with fire in challenging the president’s power to control the branch of government he was elected to lead. When the Supreme Court vindicates Trump on these seemingly technocratic removal matters, it will enable him to advance his policy agenda more effectively.
Ilya Shapiro is the director of constitutional studies at the Manhattan Institute and author of the new book Lawless: The Miseducation of America’s Elites. He also writes the Shapiro’s Gavel newsletter on Substack.