President Donald Trump’s “chainsaw” approach to removing members of regulatory commissions and his involvement in Justice Department investigations have renewed long-standing questions about grounds for when presidents can remove subordinate officials and the immunization of agencies and commissions from partisan direction. A combination of unilateral, not-for-cause terminations of Democratic commissioners by the White House and subsequent Supreme Court decisions temporarily staying their reinstatement portends a sea change in judicial precedent and political norms established to protect federal agency independence from partisan interference. 

Department of Justice 

Although the Office of the Attorney General has existed since the United States’ founding, the Department of Justice (DOJ) originated with an 1870 congressional act to promote U.S. attorneys’ independence. Creating a purely professional and centralized law department would prevent both political and personal incentives from interfering with the justice system. “Rather than the highest bidder or a partisan political master,” U.S. attorneys would be beholden only to the law and their own professional standards of accountability.¹ 

Presidents may discuss federal law with their attorneys general more broadly, but strong policy norms have scorned political influence on decisions about prosecutions or civil enforcement actions.² The Justice Manual instructs that all “legal judgments” must be “impartial and insulated from political influence,” and its “investigatory and prosecutorial powers” must be “exercised free from partisan consideration.”³ To avoid the risk of improper motivations, or even the appearance of inadvertent impropriety, attorneys general often adopt formal polices restricting federal prosecutors’—including U.S. attorneys’—contact with the White House.⁴  

Presidents may discuss federal law with their attorneys general more broadly, but strong policy norms have scorned political influence on decisions about prosecutions or civil enforcement actions.

In the wake of the Watergate era’s “Saturday Night Massacre”—when President Nixon fired his attorney general, deputy attorney general, and special counsel investigating Watergate, upending the Justice Department—both Congress and the DOJ took swift action to preserve the department’s political insulation. Congress passed the Foreign Intelligence Surveillance Act, the Ethics in Government Act, and the Inspector General Act.⁵ As Archibald Cox explained, the attorney general “will likely be a political ally of the president, but he is not a servant. What distinguishes between the two is the ethical obligation to apply the law in a fair, even-handed, and disinterested way.”⁶  

Independent Regulatory Commissions 

Not long after DOJ’s establishment, Congress created the Interstate Commerce Commission (ICC) in 1877, as post-Civil War railroads and shipping expanded trade. Not coincidentally, the ICC and two additional such bodies, the Federal Reserve System in 1913 and Federal Trade Commission (FTC) in 1914, arrived as the Progressive Era began at the end of the nineteenth century and accelerated under President Woodrow Wilson’s first term (1913–17). A response to robber barons’ financial excesses, social and political reformers looked to the federal government for relief. 

In creating these agencies to regulate business and banking, Congress intended to remove them from partisanship, corruption, and presidential whims. President Franklin Roosevelt’s New Deal vastly increased the pace of this regulatory regime by pressing Congress to establish numerous regulatory agencies to ameliorate the Great Depression’s ravages. In addition, he tested the FTC’s independence by requesting that a conservative Hoover-appointed member of the commission, William Humphrey, resign because of their differences over policies and administration of the body. 

In creating these agencies to regulate business and banking, Congress intended to remove them from partisanship, corruption, and presidential whims.

Humphrey refused, and FDR sacked him. Presidents appointed the commissioners and therefore they could remove them, Roosevelt reasoned. Yet the act creating the FTC explicitly stated that presidential removal could only be for “inefficiency, neglect of duty, or malfeasance in office.”  

Writing for a unanimous Supreme Court, Justice George Sutherland ruled that, according to the statute, “the president’s power is limited to removal for the specific causes enumerated therein.” Moreover, because Congress can create “quasi-legislative or quasi-judicial agencies,” like the FTC, their members are not executive officers, removable by presidents, except for cause. Otherwise, chief executives would violate the constitutional foundation of separated powers in our tripartite government. Sutherland’s opinion for the Court concluded, “It is quite evident that one who holds his office only during the pleasure of another, cannot be depended upon to maintain . . . independence against the latter’s will.”  

The Roberts Court and Commission Independence 

As the nation’s economy and society have grown more complex and agencies have expanded their scope, the Supreme Court has removed some independence from administrative agencies. In Seila Law LLC v. Consumer Financial Protection Bureau (2020), Chief Justice John Roberts explained that when Congress established the Consumer Financial Protection Bureau (CFPB), it “deviated from the structure of nearly every other independent administrative agency in our history” by placing the agency under the leadership of a single board member with removal protections. Because the CFPB’s structure concentrated “significant executive power” in one unelected director insulated from the president, the Court held that this violated the Constitution’s separation of powers.⁷ Using the same reasoning in Collins v. Yellen, Justice Samuel Alito held that Congress could not restrict the president’s removal power over a single-headed agency—in this case, the Federal Housing Finance Agency.⁸ Although these cases reduced Humphrey’s Executor’s protections, multimember independent agencies still maintain their for-cause removal standards. 

Currently, independent agencies have multimember boards, protected by for-cause removal provisions, with an odd number of members serving staggered, fixed terms and no one political group making up more than a bare political majority. The for-cause removal standard protects heads of independent agencies who depart from the president’s agenda, as President Trump has accused the Federal Reserve chair, Jerome Powell, of doing.  

Unitary executive proponents, growing in influence this century, emphasize the Vesting and Take Care Clauses, arguing that only the president holds executive power.

Supporters of broad power for independent agencies cite the Necessary and Proper Clause, stating that it gives Congress authority to shape executive departments and to immunize subordinate officers from presidential removal power. They note that Article II does not grant such power to the chief executive.⁹ Meanwhile, unitary executive proponents, growing in influence this century, emphasize the Vesting and Take Care Clauses, arguing that only the president holds executive power.¹⁰  

With the evolution of administrative law, Humphrey’s Executor faces extinction. Most recently, in Trump v. Wilcox (2025), the Supreme Court temporarily blocked a lower court’s ruling against the president’s removal of a member of the National Labor Relations Board and a member of the Merit Systems Protection Board. The Court’s order indicated that it would likely allow the members’ removal in the future because both agencies “exercise considerable executive power.”¹¹  

Recent Supreme Court decisions indicate hostility toward the administrative state, and two justices have already expressed that they would overturn Humphrey’s Executor. The current Court is seemingly unencumbered by long-established precedent, as in its abortion and affirmative action rulings. Legal scholars and practitioners anticipate that in the 2025–26 term, the Court will most likely overturn or completely defang Humphrey’s Executor. If so, Justice Louis Brandeis’s view that “checks and balances were established in order that this should be ‘a government of laws and not of men,’” may not survive. 

Endnotes

Perry is the Miller Center’s J. Wilson Newman Professor of Governance and codirects the Presidential Oral History Program. Wilson, a Miller Center nonresident practitioner senior fellow, is a litigation and investigations partner who chairs the product safety practice group at Covington & Burling LLP.

1.

Bruce A. Green and Rebecca Roiphe, “Can the President Control the Department of Justice?” Alabama Law Review 70, no. 1 (2018): 51–52, https://law.ua.edu/wp-content/uploads/2018/12/1-Green-Roiphe-1-75.pdf.

2.

Andrew Nisco, “The Independent Attorney General: An Analysis of Why the Office Should Be Insulated from Presidential Political Imperatives,” Georgetown Journal of Legal Ethics 36, no. 743 (2023): 761–62,.https://www.law.georgetown.edu/legal-ethics-journal/wp-content/uploads/sites/24/2024/03/GT-GJLE230038.pdf

3.

Criminal Justice Team, “Restoring Integrity and Independence at the U.S. Justice Department,” Center for American Progress, August 13, 2020, https://www.americanprogress.org/article/restoring-integrity-independence-u-s-justice-department/.

4.

Todd David Peterson, “Federal Prosecutorial Independence,” Duke Journal of Constitutional Law and Public Policy 15 (2020): 263, https://djclpp.law.duke.edu/article/federal-prosecutorial-independence-peterson-vol15-iss1/.

5.

Peterson, “Federal Prosecutorial Independence,” 266.

6.

Green and Roiphe, “Can the President,” 66.

7.

Seila Law LLC v. Consumer Financial Protection Bureau, 140 S. Ct. 2183 (2020).

8.

Collins v. Yellen, 141 S. Ct. 1761 (2021).

9.

Christine Kexel Chabot, “Is the Federal Reserve Constitutional? An Originalist Argument for Independent Agencies,” Notre Dame Law Review 96, no. 1 (2020): 5–6, https://ndlawreview.org/is-the-federal-reserve-constitutional-an-originalist-argument-for-independent-agencies/.

10.

Chabot, “Is the Federal Reserve Constitutional?”

11.

Trump v. Wilcox, 145 S. Ct. 1415 (2025).