The Supreme Court’s decision in Trump v. Slaughter has reignited a debate over whether non‑Article III tribunals can retain any independence from presidential control.
What the Court Said About Executive Power
Chief Justice John G. Roberts wrote that an agency “executes a congressional mandate against private property” and that such execution is “executive power, no ifs, ands, or quasis about it.” The opinion also noted that the “power to flesh out such statutory regimes—and to do so through discretionary actions, largely outside the remit of courts—is executive through and through.” Justice Neil Gorsuch warned that allowing presidents to dominate “vast new reservoirs of legislative and judicial power” could undermine the separation of powers.
The Court referenced the Federal Trade Commission’s evolution from a modest adjudicatory body to an agency that “enforces and administers 80 statutes,” suggesting that its modern role sits squarely within the “heartland of executive power.” By contrast, the justices said the question of tenure protections for judges in “non‑article III courts,” such as the U.S. Tax Court and the Court of Federal Claims, was not addressed in this case.
Historical Context and Existing Protections
Earlier cases provide some guidance. In Wiener v. United States (1958), the Court protected members of the War Claims Commission from at‑will removal, emphasizing that the agency’s adjudicatory function required independence. The opinion echoed Justice Felix Frankfurter’s view that Congress likely intended to keep the “Damocles’ sword” of presidential removal away from adjudicators.
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These precedents suggest that while the Court has narrowed removal protections for agencies like the Federal Reserve Board, it has not entirely abandoned the idea that certain adjudicative bodies merit insulation from direct presidential control.
Options for Preserving Independent Adjudication
Three main strategies emerge. First, agencies could be transformed into purely adjudicative bodies, stripped of rulemaking authority and the power to enforce orders without judicial involvement. This would require that any penalties, merger reviews, or international negotiations be approved by the President or a delegate.
Each option carries trade‑offs. Advisory rulings may lack the certainty needed by regulated parties, while reliance on ALJs raises questions about their status if they issue only advisory decisions. Converting agencies into adjudicative‑only entities could limit executive flexibility, a point that proponents of the “unitary executive” theory would contest.
Looking ahead, Congress might consider establishing a new Court of Administrative Adjudications, granting its members removal protections similar to those enjoyed by Article III judges. Such a body could operate under a “congruence” test, linking its functions closely to its appointing authority, thereby limiting presidential removal power.
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It is plausible that any statutory overhaul will need to balance the desire for independent adjudication with the constitutional principle that executive officers remain accountable to the President. If Congress crafts a framework where appointment and removal are insulated yet still tied to executive oversight, it could preserve the functional role of these tribunals without opening the door to unchecked presidential influence.
Practical Challenges and the Way Forward
Transferring the bulk of adjudicative work to Article III courts would overwhelm those courts with routine cases, eroding the specialized expertise that non‑Article III tribunals provide. Moreover, the sheer volume of claims—especially in the tax and veterans’ domains—means that a shift would likely increase costs and delay resolutions.
Maintaining a cadre of skilled adjudicators also depends on attracting qualified personnel. If positions become merely advisory or subject to at‑will removal, the pool of experienced judges may shrink, potentially lowering the quality of decisions.
In sum, the Supreme Court’s ruling does not close the door on independent adjudication, but it does compel Congress and policymakers to rethink the structural safeguards that have historically kept certain tribunals free from direct presidential interference. The path forward will require careful legislative design to ensure that these bodies can continue to function effectively while respecting constitutional boundaries.
