For crucial federal agencies, the veneer of independence is stripped away

WASHINGTON — Federal agencies long regarded as pillars of nonpartisan stability are facing an identity crisis after the Supreme Court this week swept away nearly a century of precedent limiting presidential power.

The high court's decision in Trump vs. Slaughter, allowing the president to remove members of historically independent agencies without cause, has sent shock waves through institutions that once believed their legal protections were secure.

And it has raised concerns about the future credibility of agencies that serve crucial public functions, from the Securities and Exchange Commission, which protects investors, to the National Labor Relations Board, which safeguards the rights of private-sector workers.

Some experts question the ruling's practical impact, noting that existing laws still require political balance on many agency boards. Presidents already wield significant influence over agency leadership. Still, most agree the decision could inject overt partisan politics into agencies that have traditionally resisted it, eroding public trust in their rules and judgment, chilling enforcement and kicking off a cycle of regulatory whiplash.

Already, President Trump has removed members of several independent regulatory bodies and appointed new leadership — including Brendan Carr as chair of the Federal Communications Commission — stoking fear among critics that these agencies are being used to advance the administration's political priorities.

The ruling, Trump said, is the "greatest increase in presidential power in the last 100 years," praising the decision as a necessary expansion of his authority.

Now, "the president can fire the principal officers heading these agencies at will," said Gillian Metzger, a professor of administrative and constitutional law at Columbia University. "That will allow for dramatic swings in policy when administrations of different parties come into office, and seek to undo decisions and policies of prior administrations."

The Slaughter decision overturned a 1935 ruling from the Supreme Court that found independent agencies — established and mandated by Congress, but housed under the executive — should have special removal protections, reflecting their hybrid roles between branches of government.

That ruling, Humphrey's Executor vs. United States, found that Congress intended for members of independent bodies to be guarded against the winds of politics, providing long-term stability, professional consistency and nonpartisan expertise.

"Presidents will be more able to direct these agencies to implement particular policies and actions, and the independent decision-making and expertise-based decision-making that Congress intended these agencies to wield will be significantly undermined," Metzger added. "That, it seems fair to say, is a real blow to the credibility of these entities as independent and expert regulators."

In a separate opinion this week, the Supreme Court singled out the Federal Reserve as an exception to its otherwise sweeping rollback of protections for independent agencies.

But it leaves bodies like the SEC — created after the 1929 stock market crash to prevent market manipulation, enforce corporate transparency and maintain fair markets — vulnerable to accusations of political capture.

"The SEC has some Fed-like characteristics as a guardian of market confidence and financial stability, but it will not receive Fed-like protections under the two decisions released yesterday," said George Georgiev, a law professor at the University of Miami and chair of the Investor Advisory Committee to the SEC.

"The practical consequences will depend on how aggressively future administrations use the removal power, and who is appointed to the Commission in the first place," Georgiev added. "Yesterday's decisions certainly upend how we think about independent agencies."

John C. Coffee Jr., a leading authority on securities law at Columbia, said the decision will lead to "a loss of credibility for the SEC."

"The lobbyists will redouble their attacks, and money will dominate good arguments in their approach," Coffee said. "It is likely to become a much more politicized agency that has less interest in hiring independent professionals."

"In such an environment, policy principles get ignored or shabbily distinguished, and marching orders come from the Executive Office Building," he added.

Kristin Hickman, a distinguished professor and associate director of the Corporate Institute at University of Minnesota Law School, characterized public reaction to the ruling as "overblown."

"Frankly, I don't know if their function is going to be all that different," Hickman said. "Statutorily, they still have to have members that are divided by party. Their statutory responsibilities don't change. The president has always had the authority to change who serves as the chair of the agency upon coming into office."

"On the one hand, doctrinally, Slaughter is a shift. You're overruling a 90-year-old precedent," she added. "On the other hand, it's not clear to me that the everyday functioning of these agencies will change dramatically."

Some of the agencies, such as the National Labor Relations Board, have no statutory requirement for political balance — and could simply cease functioning under an administration opposed to labor law enforcement.

But other experts share Hickman's skepticism that the ruling will fundamentally change agency operations.

A study published two years ago in the Cornell Law Review examined the true independence of congressionally mandated agencies such as the Federal Trade Commission, FCC, SEC and others, and found that the independent agency design did not work particularly well, with presidents already exercising substantial control.

"By appointing the chair and general counsel, presidents had agenda setting power and some policy power. For agencies without independent litigation authority, the DOJ controlled legal arguments," said Neal Devins, a professor of law and government at the College of William & Mary and an author of the study. "By the time presidents were able to have a majority of commissioners from their party — typically just over a year — presidents often called the shots."

"Yesterday's decisions certainly matter, as they give the president immediate direct control," he added. "They are also significant symbolically. But the real story is taking presidential control from the shadows into a very public place."

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