The Supreme Court just embraced an incoherent theory of presidential power

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Last month, the Supreme Court majority issued a pair of opinions that take a bold swipe at the constitutional power of Congress to enact laws limiting presidential power at the behest of the voting public.

It did so while tossing to the wind, once again, the right-wing justices’ purported adherence to conservative principles of judicial interpretation — concepts that mean nothing if they are selectively employed to serve what now looks like an unmistakable agenda: converting the U.S. government from a democracy into a kingdom.

As recounted by Chief Justice Roberts in his majority opinion, the first case, Trump v. Slaughter, arose when President Trump “designated a new chair” of the Federal Trade Commission, “replacing President Biden’s pick” on his first day in office. In March of 2025, he fired two more commissioners, including Rebecca Slaughter, who sued.

The removal by a new president of his predecessor’s top brass seems pretty routine. But Roberts goes on to say that, with respect to the FTC commissioners, Trump “did not assert that they were ‘inefficien[t],’ ‘neglect[ed]’ their ‘dut[ies],’ or committed ‘malfeasance in office,’ as the statute required.”

The statute Roberts refers to is the one that Congress enacted in 1914, which created the FTC in the first place. In other words, Roberts openly admits that Trump has unabashedly violated the express terms of a federal law in firing these particular officials.

The lower courts sided with Slaughter, because the law forbidding Trump’s behavior was unequivocal. In fact, in 1935, the Supreme Court upheld the very same FTC statute, rejecting a constitutional challenge to its requirement that presidents show “cause” (inefficiency, neglect or malfeasance) before firing FTC commissioners.

Trump predictably filed an “emergency” appeal to the Supreme Court. In one of its many so-called “shadow docket” rulings, the majority agreed that requiring him to comply with federal law was an emergency of such seriousness that it warranted an immediate injunction giving Trump what he wanted while the court pondered whether to officially (not just effectively) overrule its prior precedent and declare the 112-year-old “for cause” removal provisions unconstitutional. That is what it did last week.

Of course, the Supreme Court has the power to overrule itself. Although historically rare, it is hardly improper. What is out of the ordinary, at least prior to this majority, is routinely giving presidents “pre-relief” before thorough briefing, oral argument, and opinion-writing on whether to upend established law altogether. After all, Congress has imposed similar “for cause’ removal provisions in statutes governing numerous other agencies. The emergency ruling — and now the decision in Slaughter — unnecessarily throws all of them into potential chaos.

Worse, Roberts’s reasoning for doing so is disturbingly shaky.

Under Article II of the Constitution, presidents get to appoint executive branch officers with the advice and consent of the Senate. Article II says nothing about the president’s power to fire officers. Still, in 1926, the Supreme Court held that the president’s power to appoint implies his power to remove. Otherwise, he can’t manage his team.

But again, that power is not in the Constitution’s actual text, which is partly why in the 1935 case involving the FTC, the Court ruled that Congress can tinker with the conditions for removal of officers that inhabit the agencies it creates.

To justify the majority’s conclusion that the Constitution lets presidents fire officers willy-nilly from positions Congress creates by statute, Roberts compared presidents to monarchs. “Within living memory were the ‘long train of abuses and usurpations’ of a King who reigned as ‘a Tyrant,'” he conceded, so “several delegates to the Constitutional Convention pushed for a multimember council instead of ‘unity in the Executive magistracy,’ which they feared would serve as ‘the foetus of monarchy.'” Yet, Roberts concludes, “unity won out.” The framers chose “the foetus of monarchy.”

Roberts thus reasons that Trump must win this one, because the framers, despite knowing the risks, chose a system that smacked of the very monarchy the founding generation had revolted against. If the president holds all the power, he reckons, the people will know “‘on whom the blame or the punishment of a pernicious measure … ought really to fall.'” If presidents cannot fire their subordinates, the buck doesn’t completely stop with them.

But then, in the second case to come down on Tuesday, Trump v. Cook, the same majority pretty much abandoned its monarchy theory. When it comes to monetary policy, it sided with Federal Reserve Board member Lisa Cook, whom Trump also tried to fire without following the statutory preconditions for doing so.

This time, Roberts reasoned that the Federal Reserve is like the “first de facto central bank” of the nation, which no longer exists, but “predates even our Constitution.” So although the Constitution mandates at-will removal for FTC commissioners, he concludes, the Federal Reserve’s loose resemblance to a defunct, “de facto” historical bank makes the Constitution’s mandate that presidents have implied removal power somehow inapplicable to Cook.

If this seems head-spinning, it is because it is. Roberts reasons that the framers rejected a monarchy but that they also didn’t. That the Constitution binds Congress’s hands when it creates executive branch offices but also that it also doesn’t. That the president has complete power to fire officials in those offices but that he also doesn’t. That centuries-old precedent and history is not binding on presidents but that it also (kind of) is.

The majority’s dissonance should bother every American for a simple reason: Supreme Court justices aren’t supposed to operate like kings any more than presidents are.

Kimberly Wehle is a law professor and author of “How to Read the Constitution — and Why,” “What You Need to Know About Voting — and Why” and “How to Think Like a Lawyer — and Why,” and the Substack newsletter, “The Little Law School.”