The Supreme Court Opinions in Trump v. Slaughter and Trump v. Cook: What Do They Mean for the Future of the Administrative State?

Alan Kaplinsky (0:07)

Welcome to the award-winning Consumer Finance Monitor podcast, where we explore important new developments in the world of Consumer Financial Services and what they mean for your business, your customers, and the industry. This is a weekly show brought to you by the Consumer Financial Services Group at the Ballard Spahr Law Firm. And I'm your host, Alan Kaplinsky, the founder and former practice group leader for 25 years, and now Senior Counsel of the Consumer Financial Services Group at Ballard Spahr. And I'll be moderating today's program.

Well, today, we're going to be discussing two of the most important separation of powers decisions issued by the Supreme Court in decades. Trump v Slaughter and Trump v Cook.

Decided on June 29th, 2026, and both written by Chief Justice John Roberts. Although both cases involved presidential removal authority, they point in seemingly different directions, and at least in my mind, raise profound questions about the future of the administrative state.

To help us unpack these decisions, I'm delighted to be joined by Professor Lev Menand of Columbia Law School. Professor Menand is one of the country's leading scholars on administrative law, constitutional structure, financial regulation, and the Federal Reserve System. Lev has written extensively about the constitutional status of the Federal Reserve and the structure of the administrative state. His scholarship has become particularly influential as the Supreme Court has increasingly revisited foundational questions about presidential power and the constitutional limits of independent agencies. There are few academics, if any, that are qualified to help us understand the significance of today's decisions. And let me just mention, before I make the formal introduction of Lev, that he was on one of our podcast shows a little more than a year ago, when it was after the oral argument in the two Trump cases, both Slaughter and Cook. And also, I will commend to you an article that was published on July 7th in an online publication called Just Security. And that, of course, was written shortly after the decisions came down. And that's, I think you will find that a very good resource as well. So Lev, a very warm welcome back to you, so that now we're able to complete the circle.

Lev Menand (3:29)

It's great to be back.

Alan Kaplinsky (3:31)

Yeah, it's good to have you. But before turning to Lev, let me level set, particularly for listeners today, that aren't as familiar with the two cases that you're going to be talking about, as I'm sure many of our listeners aren't. But I'm also going to save time by summarizing what's involved in each case and the procedural posture before we get into our discussion about some of these issues that are really, I think, very interesting. First, we'll talk about Trump v. Slaughter. That case involved Rebecca Slaughter, one of the Democratic members of the Federal Trade Commission.

Shortly after taking office for his second, her second term, his second term, President Trump removed Commissioners Slaughter and one other Commissioner, Alvaro Bedoya, before the expiration of their statutory seven-year terms. The FTC Act provides that Commissioners may be removed only for quote, inefficiency, neglect of duty, or malfeasance in office, unquote. President Trump did not invoke any of those statutory grounds. Instead, he asserted that the continued service of these two Commissioners was inconsistent with his administration's priorities and relied directly on his Article 2 constitutional authority as the executive. Commissioner Slaughter challenged her removal in Federal District Court. Commissioner Bedoya decided not to challenge the removal.

The District Court ruled in Rebecca Slaughter's favor based squarely on a 1935 decision of the Supreme Court in Humphrey's executive versus United States. The DC Circuit denied the government's request for a stay, but the Supreme Court stayed the District Court's injunction and granted certiorari before judgment.

In a 6-3 decision authored by Chief Justice Roberts, the Court reversed. The Court held that the FTC's four-clause removal protections violate the separation of powers because FTC commissioners exercise what the Court referred to as substantial executive authority. The Court emphasized that today's FTC is not simply an expert advisory body.

Rather, it promulgates substantive rules, it investigates potential violations of law, it conducts enforcement proceedings, it adjudicates cases, and it seeks substantial monetary relief in federal court when it believes there have been violations of law. And Justice Roberts concluded, these are all quintessential executive functions, implying that these were not functions that the FTC had back in 1935 when the Humphreys Executive case came before the Court. Perhaps even more significantly, the Court expressly overruled Humphreys Executive, concluding that its distinction between executive, quasi-legislative and quasi-judicial functions cannot be reconciled with the Constitution's vesting of executive authority and power in a single president. Chief Justice Roberts embraced what's become known as the unitary executive theory that officers exercising executive power must remain accountable to the president through his authority to remove him.