Gorsuch Maps the Next Front: Supreme Court's FTC Ruling Opens Broader War on the Administrative State
The Supreme Court's 6-3 decision Monday giving President Donald Trump authority to remove Federal Trade Commission Commissioner Rebecca Slaughter at will did more than overturn nearly 90 years of precedent — Justice…
Key takeaways
- The Supreme Court ruled 6-3 on Monday that President Trump can remove FTC Commissioner Rebecca Slaughter at will, overturning the core of the nearly 90-year-old Humphrey's Executor precedent.
- Chief Justice John Roberts, writing for the majority, held that the FTC exercises executive power and confined the ruling narrowly to presidential removal authority, leaving open questions about agencies like the Federal Reserve.
- Justice Neil Gorsuch's concurrence went further, arguing the only sure path is to restore legislative and judicial powers to Congress and the courts by curbing agencies' combined lawmaking and adjudicative functions.
- Legal experts say Gorsuch's concurrence lays out a roadmap for future litigation challenging whether agencies under presidential control can still wield quasi-legislative and quasi-judicial powers.
- The decision raises questions about the structural status of agencies including the SEC, FCC, NLRB, and the Federal Reserve.
The Supreme Court's 6-3 decision Monday giving President Donald Trump authority to remove Federal Trade Commission Commissioner Rebecca Slaughter at will did more than overturn nearly 90 years of precedent — Justice Neil Gorsuch used a concurring opinion to sketch a constitutional roadmap for dismantling the broader administrative state, raising immediate questions about the long-term structural status of agencies including the Securities and Exchange Commission, the Federal Communications Commission, the National Labor Relations Board, and even the Federal Reserve.
Roberts Rewrites the Removal Rule
Chief Justice John Roberts wrote for the majority, holding that the FTC "unquestionably exercises executive power" and therefore its commissioners must be accountable to the president. The ruling overturns the core of Humphrey's Executor, the nearly 90-year-old precedent that had shielded independent agency officials from at-will dismissal. Roberts confined the holding narrowly to presidential removal authority, explicitly leaving open questions about agencies such as the Federal Reserve.
The immediate effect is clear: independent agency heads who exercise executive power can no longer claim statutory protection from presidential removal. What comes after that is where Gorsuch's concurrence becomes the more consequential document.
Gorsuch's Concurrence: A Constitution for Dismantlement
Gorsuch argued the ruling raises a deeper constitutional problem that the majority did not resolve. Independent agencies have long combined legislative, executive, and judicial functions under one roof — writing regulations, investigating violations, and adjudicating enforcement actions in-house. With presidential control now established over their leadership, Gorsuch questioned whether Congress can continue delegating sweeping lawmaking and adjudicative authority to agencies that are unmistakably part of the executive branch.
"The power to write new regulatory crimes still exists," Gorsuch wrote. "The ability to judge disputes in-house remains, but now the house is white." His prescription was blunt: "From here, the only sure path is to finish the journey we start today and restore legislative and judicial powers to where they belong: in Congress and the courts."
Experts See a Litigation Roadmap
Carrie Severino, president of the Judicial Crisis Network, said Gorsuch's concurrence points toward the next wave of legal challenges — not over who can be fired, but over whether agencies that now sit firmly under presidential supervision can continue exercising quasi-legislative and quasi-judicial powers Congress delegated to them over decades. "You can't straddle all of this," Severino said.
Haley Proctor, a constitutional law professor at Notre Dame Law School, described the concurrence as a first step toward rethinking how the administrative state is empowered. She noted that the logical endpoint of Gorsuch's reasoning could require Congress to reclaim regulatory authority it has long outsourced, or shift certain adjudicative functions back to Article III courts. The majority declined to go there Monday. Gorsuch signaled that future cases will.
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