Trump v. Wilcox, a case now pending on the Supreme Court’s “shadow docket,” asks whether several federal agencies that are supposed to enjoy a degree of independence from the president should be stripped of that independence.
Wilcox is the latest in Supreme Court cases involving what’s known as the “unitary executive” theory, which, in its strongest form, would give presidents legal control over every federal job that’s not part of Congress or the judiciary. And this case doesn’t look particularly good for advocates for agency independence.
In previous unitary executive cases, the Court’s Republican majority has shown it is absolutely committed to an expansive view of presidential power — including the power to fire officials who are supposed to be independent from political pressure.
Nine decades ago, in Humphrey’s Executor v. United States (1935), the Supreme Court upheld a law that protected the five commissioners of the Federal Trade Commission (FTC) from being fired except for “inefficiency, neglect of duty, or malfeasance in office.” As the Court explained, members of the FTC “are called upon to exercise the trained judgment of a body of experts” — bringing technocratic knowledge to their decisions, even if their expert judgments depart from ideas that are politically fashionable.
Relying on this authority, Congress has created multiple similar agencies — the most important of which is the Federal Reserve, which, like the central banks in other successful nations, is supposed to set interest rates based on expert economic judgment and not based on what will benefit the sitting president. The consequences of stripping the Fed of this independence would be severe. In 1971, Fed chair Arthur Burns succumbed to pressure from President Richard Nixon to juice the economy going into Nixon’s reelection race. Burns’ actions are often blamed for the years of “stagflation” — slow economic growth and high inflation — that followed.
It’s difficult to exaggerate the current Republican justices’ disdain for Humphrey’s Executor, or for the very idea that federal agencies can act independently of the president. Beginning at least as far back as Free Enterprise Fund v. Public Company Accounting Board (2010), the Court started limiting Congress’s power to shield government officials from presidential control. This process accelerated rapidly once Trump started to remake the judiciary.
The unitary executive theory even played a starring role in Trump v. United States (2024), the Supreme Court decision establishing that Trump can use the powers of the presidency to commit crimes, with the Court relying on this theory to establish that Trump has total control over the Justice Department — even if he orders prosecutors to target his political enemies.
Now, Wilcox concerns two federal officials, one of whom sits on the National Labor Relations Board and another who sits on the Merit Systems Protection Board (MSPB), who were fired by Trump despite federal laws establishing that the president cannot fire them at will. Trump’s attempt to seize full control over the MSPB is particularly consequential, in the likely event that it succeeds, because the MSPB is the agency that’s supposed to protect civil servants from politically motivated firing. If Trump gains the power to fire MSPB members, he could potentially unravel civil service protections and anti-corruption reforms that began in the Chester A. Arthur administration.
More broadly, Wilcox gives the Court’s Republican majority a vehicle to overrule Humphrey’s Executor in its entirety — potentially ending independence for all federal agencies, including the Fed.
Given the Court’s previous unitary executive decisions, there is little reason to hope that any meaningful vestige of Humphrey’s Executor may survive. And yet, as we gaze upon the chaos Trump has created in less than three months in office — the constantly changing tariffs, the contempt for court orders, the since-reversed decision to defund a prison holding thousands of ISIS combatants — it is at least theoretically possible that at least some of the Court’s Republicans will wonder if now is really the time to expand the president’s powers and give him total control over the Federal Reserve.
The unitary executive, explained
The Constitution is a notoriously vague document. It bars police from making “unreasonable” searches, without ever defining that term. It protects against “excessive” fines and “cruel and unusual punishments” without telling us what those terms mean either. One provision of the Constitution prohibits states from abridging “the privileges or immunities of citizens of the United States.” Not even the Supreme Court has any idea what that means.
For this reason, much of US constitutional law is nothing more than storytelling. In the early 20th century, when the Court was dominated by industrial age conservatives, the justices told a story about how unclear constitutional language forbidding the state from denying anyone “liberty…without due process of law” forbade labor protections like a minimum wage. In the 1970s, when more liberal justices dominated the court, the Court told a different story about how those same vague words guarantee a right to abortion. In both cases, these stories only had power for as long as a majority of the justices believed them.
The unitary executive springs from a similar well. The Republican justices derive it from a provision of the Constitution which states that “the executive Power shall be vested in a President of the United States of America.” As Justice Antonin Scalia summarized this provision in his dissenting opinion in Morrison v. Olson (1988), it “does not mean some of the executive power, but all of the executive power” is held by the president.
Accordingly, fans of the unitary executive theory argue, the president must have the power to hire and fire any government official who wields power that is “executive” in nature.
The problem with this theory is that the word “executive” is far less well-defined than the Republican justices claim that it is. In Morrison, for example, Scalia argued that the power to bring criminal prosecutions is a “quintessentially executive function” that must be under the full control of the president. And all six Republican justices adopted this view in their Trump immunity decision — it’s the reason why Trump concluded that the president can order the Justice Department to prosecute his enemies, and nothing can be done to the president afterward.
But the historical evidence for Scalia’s claim about prosecutors is exceedingly weak. For much of early American history, prosecutions were typically initiated by private attorneys who sought indictments from grand juries. Judges also sometimes instituted prosecutions, and they retain some power to do so even today. Under current law, federal district judges may sometimes appoint interim US attorneys, who oversee nearly all prosecutions within those judges’ jurisdiction.
Nevertheless, the most important question in the Wilcox case is not whether the unitary executive theory can actually be found in the Constitution, or whether the Constitution was originally understood to forbid independent agencies. What matters is that all of the Republican justices believe passionately in the story Scalia told in his Morrison dissent, and have said as much. For example, when Justice Brett Kavanaugh was asked, in 2016, which Supreme Court case he wanted to overrule, he named Morrison, saying that he wants to “put the final nail” in that decision.
It seems likely, in other words, that the Republican justices will use Wilcox to tell the story they’ve been itching to tell for so long — and to either explicitly overrule Humphrey’s Executor or grind that decision down to the point that it no longer has any real force. That could make Trump the most powerful president in American history.
Indeed, if the Court goes so far as to give Trump full control over the Fed, Trump would gain powers that he could use to make the turmoil caused by his tariffs look like a few minor eddies in the global economy.
