Roberts vs. Kagan: Supreme Court Prepares For High-Stakes Clash Over Presidential Removal Power

Roberts vs. Kagan: The Stakes

Chief Justice John Roberts and Justice Elena Kagan are set to confront one of the Supreme Court’s most consequential separation-of-powers questions: how easily may a president remove the leaders of independent federal agencies? The case, brought by former Federal Trade Commissioner Rebecca Slaughter, asks whether longstanding protections for agency independence — most notably the 1935 decision Humphrey’s Executor v. United States — may be curtailed or overruled.

Why This Matters

The outcome will shape the balance between presidential control and agency independence across financial, environmental and public-safety regulatory regimes. Many agency leaders serve with statutory protection from removal except for specific causes (such as 'inefficiency, neglect of duty, or malfeasance'), and a ruling for broader presidential removal power would loosen those protections nationwide.

Background And Key Players

Slaughter says she received an email on March 18 stating her 'continued service on the FTC is inconsistent with my Administration’s priorities.' Under the statute governing the Federal Trade Commission, commissioners may be removed only for specified causes — the precise legal limitation at the center of the dispute.

Roberts has long endorsed a robust view of executive authority and has written that the president needs effective removal power to ensure accountability. In earlier opinions he has narrowed the reach of Humphrey’s Executor and elevated Myers v. United States (1926), which emphasized presidential removal authority. Kagan counters that the Constitution permits Congress to create independent regulatory structures and that precedent supports protections preventing unfettered presidential removals.

Relevant Precedents

Humphrey’s Executor v. United States (1935)

Creates a baseline for allowing Congress to place 'for-cause' removal limits on certain multi-member independent agencies.

Free Enterprise Fund v. PCAOB (2010)

Roberts’s majority opinion struck down a particular 'for-cause' structure as unconstitutional because it impeded presidential oversight of executive functions.

Seila Law v. CFPB (2020)

The court, led by Roberts, invalidated the CFPB director’s single-director, 'for-cause' protection, relying on a narrower interpretation of Humphrey’s Executor and on Myers.

Where The Justices Stand

Roberts’s recent opinions suggest he views protections like those in Humphrey’s Executor as limited and vulnerable to reconsideration. Justice Kagan has defended those precedents as longstanding pillars that permit Congress to insulate certain agencies from direct presidential control. Their debate is both doctrinal and rhetorical: Roberts emphasizes accountability and unitary executive principles; Kagan emphasizes historical practice, institutional competence and congressional design choices.

Voices And Consequences

Scholars such as Vanderbilt’s John Dearborn point to a long-running conservative intellectual movement — the 'unitary executive' theory — that favors stronger presidential control over agencies. Supporters of agency independence warn that weakening Humphrey’s Executor could destabilize regulatory institutions that rely on insulated decision-making, from securities regulation to consumer protection.

Lawyers for Slaughter argue the administration offers no adequate justification for overruling a century of precedent that underpins modern regulatory governance. The solicitor general for the administration invokes Roberts’s own language from earlier cases, emphasizing the Constitution’s vesting of 'executive Power' in the President and the need for the President to 'take Care that the Laws be faithfully executed.' How the Court weighs those competing principles will determine whether many independent regulators remain insulated or become more directly answerable to the president.

What To Watch For

• Whether the Court plainly overrules, narrows, or preserves Humphrey’s Executor.
• How the majority describes the relationship between Myers and Humphrey’s Executor.
• Potential practical effects on the FTC, CFPB, the Federal Reserve and other agencies with protected leadership.

Bottom line: The decision will affect not only Rebecca Slaughter’s status at the FTC but also the institutional architecture of federal regulation for years to come.