Carole Levine December 26, 2025
We are living through some serious changes and challenges to how our government functions at the executive level. At the founding of our nation, the concept of checks and balances between the three branches of government (legislative, judicial and executive) was novel but deemed critical to the faithful execution of this new form of government. Governance was not wholly the responsibility of any one branch, but rather a distribution of specific actions among the three branches to allow for give and take, creating supports and prohibitions and ways to maintain balance with no one branch dominating. Today, that balance seems to be off kilter, with the much of the power and direction coming from the executive branch, and a bit of effort to set boundaries coming from the judiciary, and little direction or guidance coming from the legislative branch of our federal government.
This situation should be terrifying to anyone who believes in democracy. We are seeing the laying of the groundwork for an entirely different form of governing. What appears to be growing here is an American form of autocracy that is creeping into our daily lives, limiting our rights and freedoms, and increasing the power of the Executive Branch of our government as well as the power of those who have the wealth to control things. Key among those things being controlled is the flow of information. What we know about what is going on is heavily manipulated by those in power.
What we have today is a presidential administration that has fully embraced the so-called Unitary Executive Theory. This theory that dates back to the Reagan administration (or before), supports a belief that the Constitution vests all executive power in the president and with that, he controls everything the executive branch does. In a 2010 decision, Chief Justice Roberts said the president’s power generally includes “the authority to remove those who assist him in carrying out his duties. Without such power, the president could not be held fully accountable for discharging his own responsibilities.”
Of concern here are the number of federal agencies that report directly to the president. We generally refer to them as the President’s Cabinet including the sixteen major departments and agencies of the federal government. When put in the context of ultimate control of the work of these agencies, the depth and breadth of the reach and power of the presidency should give all of us pause. But there is a counterbalanced case that should be, and is being given consideration in the context of presidential power. That case is Humphrey’s Executor v. United States, decided by the Supreme Court in 1935. In this case, then President Roosevelt in 1933 had asked for Humphry’s resignation as a member of the Federal Trade Commission since Humphry was a conservative and had jurisdiction over many of Roosevelt’s New Deal policies. Humphry refused and Roosevelt fired him. In a landmark U.S. Supreme Court decision, the court ruled that the U.S. Constitution allows Congress to enact laws limiting the ability of the President of the United States to fire the executive officials of an independent agency that is quasi-legislative or quasi-judicial in nature. Thus, we have “dueling” theories and interpretations of the power of the presidency. On the one hand, the Unitary Executive Theory supports the concept of most (or all) power rests with the president, and on the other hand, Humphrey’s Executor points to Congress’s ability to limit those powers. As these two precedents clash, will the courts, particularly the Supreme Court be the “decider” here?
In looking at federal court decisions in the first eleven months of the second Trump administration, there is a clear trend. Trump has emerged the “winner” in the majority of federal court cases that have advanced beyond the lower federal courts. The Supreme Court has, until this week, consistently come down on the side of the president, particularly on cases on their emergency docket. Last Friday’s ruling in the dispute over immigration judges was “a rare loss for the Trump administration on the Supreme Court’s emergency docket,” according to The Hill. “The administration has filed 32 emergency applications with the justices since Trump retook the White House,” and “the Supreme Court has almost always sided with the Trump administration in those decided so far.” Another “loss” for the president occurred this week, when they left in place a ruling by a federal judge in Chicago that bars the Trump administration from deploying the National Guard in Illinois. Has the tide turned? I would not be optimistic given the numbers.
Given an opportunity to overturn Humphrey’s Executor, it seems likely that six members of the current Supreme Court would gladly make that happen. The three liberals on the Court have said in recent dissents that this is where their colleagues are headed. Federal law has long dictated that federal employees can be fired only for “inefficiency, neglect of duty, or malfeasance in office.” It is part of a provision that the Supreme Court upheld in 1935 (Humphrey’s Executor). In September, Justice Kagan wrote that the court’s majority, order by order, “has handed full control” of a series of agencies to the president. The majority, she added, appeared to be “raring” to overturn the 1935 precedent. Still, she wrote, “until the deed is done,” it would remain in effect.
So here we sit with a president and administration that are driven to fulfill the unitary executive theory, replacing rank-and-file government employees with presidential loyalists, seeding total control and power to the president. “It’s the logical endpoint to unitary executive theory,” said Don Moynihan, a professor of public policy at the University of Michigan. “Their desired end goal would be to arrive at a completely ‘at-will’ workforce. … I think the administration is going to push the unitary executive idea as far as it can, and all of the signals it has been getting from the Supreme Court is to push further and push faster.”
On December 8, 2025, the Supreme Court heard the case of Trump v. Slaughter. This could be the pivotal case that cements the primacy of the Unitary Executive Theory verses Humphrey’s Executor. In the simplest terms, this case evolves around President Trump’s firing of FTC Commissioner Rebecca Slaughter and whether her removal was unlawful because the President failed to offer a statutory cause for the firing. As the Justices consider this case, the key issue will be the separation of powers as President Trump had fired Slaughter because her service was “inconsistent with the Administration’s priorities.” A decision in this case may not come until spring of 2026. Until then, we will continue to watch this Administration erode the separation and balance of powers. Perhaps, in deciding Trump v. Slaughter, the Supreme Court will restore that important balance. We can only hope.
