Understanding the who and what of presidential power

The upcoming 2025-26 Supreme Court term is already highlighting contrasting approaches to presidential power. Recent cases demonstrate a divide between how the Court views the presidents ability to control agency personnel versus influence policy decisions.

In Learning Resources v. Trump, President Trumps broad claim of tariff authority faced significant skepticism from the justices. Concerns were voiced not only by liberal members but also by conservatives, including Justice Neil Gorsuch, over the scope of executive power and the shift of authority from Congress to the presidency.

Conversely, in the pending Trump v. Slaughter case concerning Trumps removal of two Democratic Federal Trade Commission leaders, the Courts reaction may be less critical. Earlier rulings, including a May 22 order addressing similar removals in the National Labor Relations Board (NLRB) and Merit Systems Protection Board, suggested that the president likely possesses inherent constitutional authority to remove agency heads, even when statutes attempt to limit this power. The statutory limits on NLRB and FTC removals are notably similar.

Since that initial NLRB ruling, the Supreme Court has consistently stayed lower-court orders blocking Trump from firing heads of several multi-member agencies, even when such actions did not comply with statutory restrictions. For example, in July, the Court stayed a 4th Circuit ruling that blocked Trump from removing three Consumer Product Safety Commission members, citing the May NLRB order as controlling. In September, the Court issued a similar stay regarding the FTC.

Justice Elena Kagan, dissenting, criticized these decisions, arguing that they grant the president unchecked authority over agency leaders, contrary to Congress intent. While opinions differ, this tension highlights a broader pattern in the Courts approach to presidential authority.

Who vs. What Cases

The Court differentiates between two categories of presidential power cases:

• Who cases: Focused on the presidents constitutional authority to remove agency heads. The Court has broadly supported presidential power here, often overriding statutory protections. This includes cases involving the Public Company Accounting Oversight Board, the Federal Housing Finance Agency, and the Consumer Financial Protection Bureau. The historic Humphreys Executor precedent, which allows Congress to protect certain independent agency officials, remains intact but has increasingly narrow application.
• What cases: Concern the presidents statutory authority to set agency policy. Here, the Court has limited presidential power, frequently rejecting executive policy actions that fail to comply with statutory procedures. Examples include the rejection of Trump-era immigration policies, the census citizenship question, the COVID-era eviction moratorium, the Clean Power Plan, and the student loan waiver program. The 2024 Loper Bright Enterprises v. Raimondo decision notably curtailed judicial deference to executive interpretations of law, reducing the presidents policy-making discretion.

In essence, the Roberts Court has simultaneously expanded presidential authority over personnel while restricting the presidents influence over substantive agency policies. Understanding this who-what distinction is essential for interpreting current and future Supreme Court rulings on executive power.

The upcoming decisions on tariff authority and FTC removals will continue to illustrate these divergent approaches, with personnel challenges likely remaining far fewer than policy-related disputes in the coming years.

Author: Ava Mitchell