If statutes mandating the independence of certain agencies are found unconstitutional, it may follow that the very existence of those agencies is now at risk of illegality.
Donald Trump and FTC Commissioner Rebecca Slaughter. In the current ruling Trump v. Slaughter, the Supreme Court held that statutes shielding the top officials of so‑called independent executive agencies from dismissal violate the President’s removal power enshrined in the Constitution. In my previous writing, I observed that the precise reach of this doctrine remains unsettled, especially in light of the Court’s carve-out for members of the Federal Reserve Board in Trump v. Cook, issued on the same day. However, for purposes of discussion, suppose that, following Slaughter, removal protections for the heads of nearly all formerly independent federal agencies are indeed unconstitutional. If that is the case, I would contend that the mere existence of at least some of these agencies could be challenged on the ground that their removal protections are not severable from the rest of the statutes that establish them.
Justice Neil Gorsuch, in his concurrence in Slaughter, rightly notes that Congress might not have created many of these independent bodies in the first place—or at least not entrusted them with as much authority—had it anticipated that the president would eventually command their leadership outright. Today’s independent agencies do more than enforce executive powers; Congress has also delegated to them substantial legislative and judicial capacities, effectively enabling these bodies to craft rules and resolve disputes under them. And once today’s decision takes hold, the President could effectively exercise all of those powers as well. This development raises pressing questions, including: Would Congress have delegated such sweeping authority—spanning legislative and judicial domains—to independent agencies if it had known the President would exercise dominion over them? How would Congress respond now, if it can at all? And what, if anything, will the Court do about it in future cases?
Gorsuch goes on to contend that this issue calls for stronger judicial enforcement of the constitutional nondelegation doctrine and the related major questions doctrine. I share the view that these doctrines serve as important safeguards against executive overreach and that courts should apply them with more vigor. Yet, the dissolution of removal protections, by itself, does not automatically trigger a tightened standard of review under those two doctrines. Whether a particular delegation violates nondelegation or major questions principles depends on the character and breadth of the power granted, not merely on who holds it or whether agency leaders enjoy insulation from removal.
By contrast, the invalidation of removal protections has significance under the Supreme Court’s severability framework, which addresses what happens when part of a statute is struck down as unconstitutional while other portions remain intact. In such situations, should the rest of the statute also fall apart, or can it stand? The governing precedent here is far from unambiguous. Still, the general answer hinges on how central the struck‑down provision is to the statute’s overall design and whether Congress would have enacted the law without that unconstitutional element.
A portion of this line of reasoning was developed in the amicus brief I joined with a cross‑ideological coalition of legal scholars in California v. Texas (2021), the case concerning the severability of the Obamacare framework. The correct outcome will likely differ from agency to agency. Yet I think Justice Gorsuch is right to suggest that at least some of these agencies would not exist in their current form if their leaders had not been shielded from removal by the White House. If that is true, then the removal protections’ invalidation could render those agencies inseverable from the unconstitutional anti‑removal provision. If this litigation ultimately leads to the agencies’ invalidation, Congress could respond by drafting new statutes to recreate them. But the new entities might not be granted the same scope of authority as their predecessors.
I will not attempt here to map out every agency or assess the likelihood of inseverability suits challenging each one. As noted, the legal viability of such challenges will be case‑specific. Courts may also hesitate to invalidate agencies because of long‑standing reliance interests or because of their economic and political weight. Nevertheless, I urge public‑interest groups, industry stakeholders, consumers, and others affected by these agencies’ regulatory powers to weigh seriously whether to pursue challenges on this basis.
NOTE: For those tracking the argument, the position I tentatively advance here remains consistent with the Obamacare severability posture I earlier endorsed in related litigation. In several writings and amicus briefs during that dispute, I argued that what remained of the Obamacare “individual mandate” after Congress largely neutered it in 2017 (by abolishing the penalty for noncompliance) was too inconsequential to render it inseverable from the rest of the Affordable Care Act. By contrast, the protection of agency heads from removal represents a far more consequential element of the statutes establishing at least some of the regulatory bodies that this doctrine now jeopardizes—until that protection was declared unconstitutional in Slaughter.
