The Supreme Court seems well on its way to gutting independent agencies—a form of governance that has been a fixture in our country for more than a century. Most recently, the Court allowed President Trump’s firing of a Democratic commissioner, Rebecca Slaughter, from the Federal Trade Commission (“FTC”) to stand while her case is litigated. Congress must respond to the Court’s upheaval of the protections provided by independent agencies. The Court’s actions have undermined Congress’s commitment to the public that important rights and protections would be enforced by experts free from the front lines of politics.
The Court’s decision in Commissioner Slaughter’s case runs directly counter to its decision in Humphrey’s Executor v. United States (1935), where the Court held that a president may remove an FTC commissioner only for “inefficiency, neglect of duty, or malfeasance in office.” President Trump gave no cause for Commissioner Slaughter’s dismissal, stating only that her service was “inconsistent” with his administration’s priorities. Put another way, he fired her because he did not like her politics. This marks the third time this year that the Court has permitted the President to dismiss members of bipartisan commissions or boards in contravention of statutory constraints that he may remove them only for cause.
Congress deliberately created independent agencies—from the CIA to the Federal Election Commission to the Postal Service to the National Labor Relations Board (“NLRB”)—to have unique expertise and protect core functions from political interference. Let’s take, for example, the NLRB. When debating how to structure the NLRB, the enacting Congress had a vigorous debate about the level of independence to accord the NLRB. While most members of Congress joined the consensus that NLRB members should have a healthy modicum of independence from the whims of the President when deciding cases, a split developed: those who wanted to accord the NLRB maximum independence by keeping it separate from the Department of Labor and protected by for-cause removal for Board members versus those who preferred that the NLRB be housed within the Department of Labor. Ultimately, Congress bucked the Roosevelt Administration and opted for full independence. Representative Marcantonio implored his colleagues to put the matter of the NLRB’S independence “beyond doubt.” They did so, making the NLRB a separate agency and limiting the president’s ability to remove Board members absent a showing in a hearing of “neglect of duty or malfeasance.”
A similar debate took place with Congress’s creation of the Federal Communications Commission (“FCC”) in 1934. During congressional debates, members of both parties were particularly concerned about political interference and censorship of public communications. Republican Senator Schall was concerned that a new federal communications commission would allow the President to censor the press. Democratic Representative Willford implored that the freedom of the press “should be extended to the radio stations of these United States without any political hatchet ready to sacrifice them if their principles are not pleasing.” Democratic Senator Dickinson, responding to allegations of White House interference in investigations before the FCC’s precursor, the Federal Radio Commission, noted “I am sure we all are interested in seeing to it that the new Commission is nonpartisan, nonpolitical, not merely in form but also in fact.”
The concerns animating Congress’s creation of an independent commission are more relevant than ever today. Current FCC Chair Brendan Carr recently made threats that resulted in comedian Jimmy Kimmel being temporarily taken off the air for comments that the President didn’t like. That type of political influence, combined with increased corporate consolidation, is a threat to the free speech that the drafters of the Communications Act and the Constitution strove to protect.
What are the consequences of the Court’s overturning Congress’s intent to create independent agencies? It is yet another step in devaluing expertise in government. As Justice Kagan pointed out in her dissent in Wilcox v. Trump (2025), Congress created independent agencies because “[i]t thought that in certain spheres of government, a group of knowledgeable people from both parties—none of whom a President could remove without cause—would make decisions likely to advance the long-term public good.” This commitment to the long-term public good comes from the very features that define independent agencies: the need for members to discuss decisions with colleagues who likely have a different perspective, insulation from the need to appease the political desires of the president that frees incumbents to rely on their best informed judgment in making decisions, and the enhanced expertise that comes from sitting on a board or commission for a term longer than that usually enjoyed by political appointees.
If the Court strips away independence, Congress must act to amend these agencies’ authorizing statutes to ensure that those protected by these agencies do not have their ability to get a fair hearing of their interests captured by a President’s political whims. Let’s again turn to what would happen at the NLRB if its independence is stripped. The NLRB adjudicates disputes between employers and employees related to collective bargaining rights. In a post-Humphrey’s Executor world, unions and workers will never know if decisions in cases they lose were based on Board members’ best interpretation of the law or because the employer was a political supporter of the president who is holding removal over Board members’ heads. We cannot assume that these agencies can or should continue to operate as-is but with heightened political oversight and control.
To protect the public’s rights, Congress should expand private rights of action in statutes where agencies currently serve as the only enforcers. This ensures that workers, consumers, and members of the public retain the ability to vindicate their rights in court even if agencies are weakened or politically captured. Title VII of the Civil Rights Act offers a relevant model. After the Equal Employment Opportunity Commission (“EEOC”) reviews a claim, workers may file their own discrimination lawsuits. Shortly after President Trump removed two Democratic commissioners, the EEOC dropped all its cases on behalf of transgender workers—yet those workers at least still retained access to the courts to pursue their civil rights claims on their own. Juxtapose these workers with those whose rights under the National Labor Relations Act (“NLRA”) are violated. If President Trump is successful in putting all NLRB members under his unfettered control, workers in the United States will be precluded from getting anyone not under his control to adjudicate their claims—that is because there is no private right of action under the NLRA. Unions and workers will be stuck with appeal only to a Trump-controlled NLRB.
The Court’s current course all but guarantees that our system of independent, expert-driven administration will not survive in its present form. Policymakers must take responsibility now for ensuring that the public retains enforceable rights and protections.
Sharon Block is a professor of practice at Harvard Law School, where she teaches administrative law, and is a former member of the National Labor Relations Board.
Tanya Goldman served as Senior Counselor to the Secretary of Labor from 2022-2023. She is currently a Senior Fellow at Workshop and the National Partnership for Women & Families.