Restoring the Constitutional Presidency

Commentary on the Executive Vesting Clause

The Supreme Court’s decision in Trump v. Slaughter may prove to be one of the most consequential separation-of-powers decisions in a generation. While many will understandably view the case through the lens of current politics, the constitutional question before the Court was far more enduring: May Congress insulate principal executive officers from presidential removal, or does Article II require that those who exercise executive power ultimately remain accountable to the President?

The case arose after President Donald Trump removed Federal Trade Commission Commissioner Rebecca Slaughter, notwithstanding a federal statute that purported to protect FTC commissioners from removal except for “inefficiency, neglect of duty, or malfeasance in office.” Relying on the Court’s 1935 decision in Humphrey’s Executor v. United States, Commissioner Slaughter challenged her removal, arguing that Congress could constitutionally shield FTC commissioners from presidential control. The Supreme Court disagreed, holding that the statutory restriction violated the separation of powers and overruling Humphrey’s Executor, a precedent that had stood for more than ninety years. Although the headlines naturally focused on the President, the decision is not fundamentally about one President. It is about the Constitution itself.

Article II begins with one of the Constitution’s simplest yet most significant declarations: “The executive Power shall be vested in a President of the United States.” Those words mean exactly what they say. The Framers did not vest some executive power in the President, nor did they divide executive authority among a collection of semi-independent officers insulated from democratic accountability. They vested the executive power in one nationally elected Chief Executive.

That constitutional design reflects one of the Founders’ central insights about liberty. Governmental power must always be accompanied by governmental accountability. If executive officers exercise executive power, someone must answer to the American people for how that power is used. The Constitution identifies that person: the President of the United States.

For decades, however, the modern administrative state has increasingly blurred that constitutional line. Congress created numerous independent agencies whose leaders exercised substantial executive authority while remaining largely insulated from presidential removal. Whatever one thinks about the policy wisdom of those arrangements, they created a growing tension with the Constitution’s text and structure.

The Court’s decision in Trump v. Slaughter represents a significant effort to restore that original constitutional design. It does not abolish federal agencies. It does not eliminate congressional authority to organize the executive branch. Nor does it place the President above the law. Congress continues to legislate, the courts continue to review executive action, and the American people retain the ultimate check through elections.

What the decision does reaffirm is a first principle of constitutional government: executive power and executive accountability belong together.

The Court’s decision restores the Constitution’s original allocation of executive power and the accountability that necessarily accompanies it. The Framers understood that liberty is best preserved when governmental authority is clearly assigned and those who exercise it remain answerable to the people. In reaffirming that principle, the Court takes an important step toward restoring the constitutional presidency envisioned by Article II.