Executive Power over “Mixed” Agencies

In a new Supreme Court case, Trump v. Slaughter (2026), the Court has an opportunity to fix a long-standing constitutional issue [1]. In 2025, the President removed Rebecca Slaughter as the director of the Federal Trade Commission — a federal organization with executive, law-making, and judicial powers — declaring he had the full right to do so. The President rested his claim on the Vesting Clause of the Constitution [2], as interpreted in Myers v. United States (1926) [3], and given scope and teeth by Seila Law LLC v. Consumer Financial Protection Bureau (2020)’s limiting of Humphrey’s Executor v. United States [4]. However, the FTC’s non-executive duties raise serious concerns about the degree to which the President is exercising powers not granted to him in the Constitution.

The Constitution vests only the executive powers in the President [5]. Therefore, organizations exhibiting substantial non-executive functions must have some sort of insulation from the absolute will of the President, lest he be granted powers not enumerated to him. Humphrey’s Executor created a line, noting that the Federal Trade Commission was constructed of a nonpartisan body of excerpts, and that it was “charged with duties neither political nor executive, but predominantly quasi-judicial and quasi-legislative”, and therefore not subject to the president's unchecked removal power. However, it has left room for interpretation regarding what kind and how much quasi-legislative or quasi-judicial power an organization must wield to be insulated from the president. In their forthcoming Slaughter decision, the Court should isolate the function of the executive by clarifying the scope of the Humphreys decision. This would be the first step in establishing a broader constitutional design principle, and may guide the creation of more resilient and power-sharing institutions.

I will start by conceding that the Myers ruling, which interpreted the Vesting Clause to mean that purely executive officers may be removed essentially at the will of the president, is essentially correct and uncontested here. Executive authority and delegation clearly cover these officers, leaving the appointment and removal of cabinet secretaries, postmasters, and other purely executive officers to the discretion of the president, within whom the executive power is squarely vested. Abandoning this entirely risks heavily debilitating the capacity of the chief executive to create an administration capable of delivering on promises to voters.

However, our constitution is also built on checks and balances, and there is an important distinction between fully executive organizations, like the Department of War, and organizations with legislative authority that operate independently from the jurisdiction of the executive branch, like the FTC. This distinction was well outlined in the Humphrey’s ruling, where organizations like these were characterised as having “duties neither political nor executive, but predominantly quasi-judicial and quasi-legislative” [6]. Such duties might include setting national regulations for trade, and administering judgement of if these regulations had been violated.

Seila, however, narrowly focused on an organization’s executive capacity [7]. The slim majority claimed that because the Consumer Financial Protection Bureau enforced federal law against private parties and exercised prosecutorial and regulatory discretion, it wielded “substantial executive power” and therefore the President must have plenary removal authority over its director. This reasoning contains a dangerous and flawed logic. An organization with substantial non-executive (quasi-judicial and or quasi-legislative) functions, even in the presence of substantial or predominant executive function, should not be subjected to the absolute will of the president, considering that only the executive powers are vested in the president. If Slaughter reinforces Seila, at-will removal will reach the CFPB, FTC, FEC, NLRB, and independent counsel alike, and precedent will be established that the President not only has unitary powers over executive function but over any regulatory agency as well.

Slaughter offers a perfect case where this separation of power can be clarified. The FTC is inherently mixed in its function. The commission promulgates binding regulations of general applicability, adjudicates enforcement actions through its own administrative law judges, and issues cease-and-desist orders carrying the force of law. There is some evidence that the commission’s functions have assumed an increasingly executive character over time, as it now investigates commercial conduct, initiates enforcement actions, and implements administration policy priorities. Nevertheless, the FTC retains an enormous amount of legislative and judicial capacity. Were the President granted unchecked authority over the Commission, he would effectively control the legislation of trade regulation rules governing virtually every sector of the American economy, from pharmaceuticals and healthcare to technology and consumer financial products, as well as the adjudication of enforcement actions brought against the businesses operating within them.

Instead, Slaughter should be used to build a test that assumes power is non-absolute until it is proven that the president is not assuming authority over non-executive functions. The test should not ask how much executive function is demonstrated before the president must take over, as the Court decided in Seila Law, but instead how much non-executive function must be demonstrated before the president loses authority. Substantial non-executive function, like in the case of the FTC, must be disqualifying for absolute presidential authority over removal. Under this test, an organization that, for example, procedurally enforces the laws/regulations it writes has effectively abdicated its complete position in the executive branch. When an organization mixes both executive and non-executive power, authority over it must also be mixed accordingly.

Once established, this principle will likely extend through organizational design. In the long term, organizations with mixed functions will require better internal insulation of power. Perhaps insulating directors of executive functions from directors of regulatory or adjudicatory functions, so oversight isn't concentrated in a removable head or board. The concentration of oversight for an organization with mixed powers is what creates power-sharing friction, where an organization would be supervised by multiple branches. Designing organizations so that executive function is independent of quasi-legislative or quasi-judicial functions would satisfy the necessity for mixed power organizations, while alleviating concerns of executive overreach

Unfortunately, at this point, most federal organizations have not adopted such a design, and our government currently lacks the incentive structure to change that. Slaughter should serve the foundational role of making this doctrinal principle clear and actionable. Once we stop excusing executive overreach in the name of efficiency and begin fairly upholding the separation of powers as outlined by the Constitution, we may finally see its downstream effects in creating effective, capable, and just institutions that can still function in the 21st century.

[1] Trump v. Slaughter, No. 25-332 (U.S. argued Dec. 8, 2025)
[2] U.S. Constitution, Article II, §1
[3] Myers v. United States, 272 U.S. 52 (1926)
[4] Seila Law LLC v. CFPB, 591 U.S. ___ (2020); Humphrey’s Executor v. United States, 295 U.S. 602 (1935)
[5] Trump v. Slaughter (2025)
[6] Humphrey’s Executor v. United States (1935)
[7] Seila Law LLC v. CFPB (2020)