Introduction

July 4, 1776, declared our independence from a king. April 2025 may mark the month we hand that same power to a president.

When President Trump summarily dismissed Federal Trade Commissioner Rebecca Slaughter, he did more than fire a bureaucrat—he launched a constitutional transformation. With a stroke of a pen, he swept aside decades of constitutional settlement and centuries of historical precedent. The Supreme Court now faces a stark choice: uphold independent regulatory agencies that have structured American governance for generations, or surrender unprecedented power to presidential control.

The stakes extend far beyond arcane debates over administrative law. A presidential victory would mean the Federal Reserve Chair could be fired for refusing to lower interest rates before elections. FCC Commissioners could be dismissed for regulating media companies unfavorably to the administration. Election commissioners could be removed for enforcing campaign finance laws against presidential allies.

What makes this constitutional power grab particularly audacious is that it arrives wrapped in the flag of faithful constitutionalism—claiming fidelity to the same founding generation that deliberately created administrative structures insulated from presidential control. The true original story, revealed through the founding-era precedents of the Sinking Fund Commission, militia system, and Patent Board of 1790, tells a dramatically different tale—one that legitimizes meaningful limits on presidential removal power and supports the constitutional foundations of modern independent agencies.

Originalism and the Weakly Unitary Executive

Advocates of a “strong unitary” executive branch insist that Article II’s vesting of executive power in “a President of the United States” and the Take Care Clause command absolute presidential control over all executive functions, including plenary removal authority over every official exercising administrative power. Under this view, any congressional attempt to insulate an official from at-will removal by the President is presumptively unconstitutional.

But this absolutist reading is more spider’s web than constitutional bedrock, recalling Justice Holmes’s caution against excessive formalism. Faithful interpretation demands we examine not just isolated constitutional phrases, but how the founding generation interpreted and implemented them. And here, the historical record offers compelling evidence for what I call a “weakly unitary” executive—one where Congress has meaningful authority under the Necessary and Proper Clause to structure administration in ways that secure good governance while respecting presidential authority.

Consider the text itself. Article II vests “the executive Power” in a President, but tells us precious little about what constitutes “executive power” or how it must be exercised. The Constitution’s “Opinions in Writing” Clause explicitly gives the President authority to “require the Opinion, in writing, of the principal Officer in each of the executive Departments,” but if the President already possessed absolute control over all executive officers, why would the Framers specify this particular power? The Constitution’s explicit enumeration of this presidential prerogative strongly suggests the President’s authority over administration was understood to have meaningful limits.

Two Founding Precedents: The Sinking Fund and the Constitutional Militia

The historical record offers two powerful constitutional precedents against absolute presidential removal power: the Sinking Fund Commission of 1790 and the militia system prescribed by the Constitution itself.

The Sinking Fund Commission was established by the First Congress and signed into law by President Washington. As meticulously documented by Professor Christine Chabot, the Commission represents nothing less than an originalist precedent for administrative independence. Created to manage the repayment of Revolutionary War debt—a crushing financial obligation that threatened the young republic’s very survival—this five-member board included the Secretary of the Treasury (Alexander Hamilton), the Secretary of State (Thomas Jefferson), the Attorney General (Edmund Randolph), Vice President John Adams, and Chief Justice John Jay. This Commission controlled the disbursement of funds that Congress had allocated to repay the national debt.

The Commission’s structure deliberately limited presidential control. The President had no constitutional authority to remove the Chief Justice or the Vice President from their offices, and therefore had no power to replace these officials on the Commission. This was by design—the Commission was intentionally structured to prevent the President from unilaterally controlling the disbursement of these congressionally-allocated funds.

Similarly powerful evidence comes from the constitutional structure and early implementation of the militia system. Article I, Section 8, Clause 16 explicitly divides militia authority, granting Congress power “to provide for organizing, arming, and disciplining, the Militia” while reserving “to the States respectively, the Appointment of the Officers.” This constitutional division created a significant check on presidential control—the President, as Commander in Chief, could command militia officers when called into federal service, but lacked authority to appoint or remove these officers even as they executed federal policy.

The Second Congress confirmed this arrangement in the Militia Act of 1792, signed into law by President Washington. This Act implemented the constitutional division of authority, establishing a nationwide regulatory framework while preserving state appointment of officers. When militia units were called into federal service, the President commanded officers he neither appointed nor could remove, yet these officers implemented federal law and policy.

The Patent Board of 1790: Another Founding-Era Precedent for Independence

A third compelling founding-era precedent comes from the Patent Board established by the Patent Act of 1790. This three-member commission—consisting of the Secretary of State, Secretary of War, and Attorney General—was authorized to grant patents “if they shall deem the invention or discovery sufficiently useful and important.” While composed of cabinet officials, the Act gave the board members collective decision-making authority that operated independent of direct presidential control.

Thomas Jefferson, who served on this board as Secretary of State, noted the independent nature of these determinations, writing that patent decisions required “a judicial act” rather than a purely executive function. The board members exercised judgment based on statutory criteria, not presidential preference. Indeed, there is no historical evidence that President Washington ever attempted to direct the Patent Board’s decisions or claimed authority to do so.

This independent exercise of delegated authority by cabinet officials—whom the President could remove from their primary offices but whose patent determinations were statutorily insulated from direct presidential control—offers further evidence that the founding generation understood executive power as compatible with administrative independence in certain contexts.

These founding-era arrangements—two statutory and one constitutional—all demonstrate that the strong unitary executive theory misreads our constitutional design and the history that gave rise to it. In each context, officials executed federal functions while structurally insulated from presidential removal or direct control—precisely the arrangement that modern independent agencies embody.

Beyond the Founding: A Pattern of Administrative Experimentation

These early precedents were not isolated cases but part of a broader pattern of administrative experimentation in the early republic that belies the strong executive theory.

Consider the Post Office under President Washington. Established by the Post Office Act of 1792, this institution became one of early America’s largest and most important administrative agencies. Crucially, while the Postmaster General served at the pleasure of the President, the vast network of local postmasters enjoyed a significant degree of practical independence. The Act contained detailed instructions for postmasters and postal operations that constrained presidential discretion. Local postmasters were understood to have protection from politically-motivated interference, as they performed functions requiring neutrality and trustworthiness akin to today’s digital media and newspaper press. Washington himself recognized these constraints, never asserting unlimited control over postal operations.

The First Bank of the United States, championed by Hamilton and approved by Washington, likewise operated with meaningful independence from direct presidential control. Its directors, while nominated by the President, functioned with significant autonomy in making monetary and fiscal decisions—an arrangement that resembles modern financial regulatory agencies.

During the Civil War and Reconstruction, this pattern of administrative experimentation continued. The Freedmen’s Bureau, established in 1865, represents another historical precedent for independent administration. Created to assist formerly enslaved people’s transition to freedom, the Bureau exercised a remarkable range of functions—distributing food and medical supplies, establishing schools, supervising labor contracts, and even adjudicating disputes. While nominally within the War Department, the Bureau operated with considerable autonomy to fulfill its humanitarian and administrative mission.

As legal historian Jerry Mashaw has meticulously documented in his book Creating the Administrative Constitution, the early republic witnessed a diverse array of administrative structures that didn’t conform to a strong unitary model. The First Congress routinely enlisted judges and private parties to check executive officers’ conduct in various capacities.

These historical practices reveal that the Constitution contemplates meaningful congressional structuring of administration, including independence-protecting features in certain contexts. This doesn’t mean Congress could create unlimited obstacles to presidential control—the Constitution clearly establishes a single chief executive with broad supervisory powers. But it does mean the Constitution’s framers understood executive power in more nuanced ways than modern unitary executive proponents suggest.

Addressing the Strongest Unitary Executive Counter-Arguments

Proponents of the strong unitary executive theory might object that the Sinking Fund Commission, militia system, and Patent Board examples are distinguishable from modern independent agencies in crucial ways. They might argue that the Sinking Fund Commission included constitutional officers (the Vice President and Chief Justice) whose independence derives from their constitutional status rather than statutory design. Similarly, they might contend that militia officers were state officials operating in a unique federalism context, not federal administrators.

These objections fail for several reasons. First, they misunderstand the constitutional significance of these early precedents. The crucial point is not that these arrangements are identical to modern independent agencies in every detail, but rather that they demonstrate the founding generation’s acceptance of administrative structures where significant executive functions were performed by officials the President could not unilaterally remove.

Second, these objections ignore that the First Congress—filled with Constitutional Convention delegates and ratifiers—deliberately chose to place important executive functions in hands the President could not fully control. If the original understanding of Article II required absolute presidential removal authority over all officials executing federal law, these arrangements would have been constitutionally suspect from inception. Yet they were embraced by the same generation—the same cast of figures—that proposed, drafted, and ratified the 1787 Constitution.

Third, while the specific mechanisms of independence varied across these examples (constitutional officers, state appointees, collective decision-making), they all share a common constitutional principle: that certain governmental functions benefit from protection against direct presidential control. This principle—not the particular institutional form—is what connects these founding precedents to modern independent agencies.

Finally, these examples refute the textual argument that Article II’s vesting clause inherently requires unlimited presidential removal power. If the Constitution’s text truly mandated such absolute control, the First Congress could not have created entities like the Sinking Fund Commission or Patent Board, and the Constitution itself would not have established a militia system with state-appointed officers. The existence of these founding-era arrangements demonstrates that Article II was understood to permit significant flexibility in administrative design.

Humphrey’s Executor and the Supreme Court’s Recent Jurisprudence

The Supreme Court’s 1935 decision in Humphrey’s Executor v. United States, upholding the independence of the Federal Trade Commission, is often portrayed by unitary executive theorists as a radical departure from original understanding. But in light of the historical evidence, it’s more accurately understood as a recognition of constitutional practices dating to the founding.

In Seila Law v. Consumer Financial Protection Bureau (2020), Chief Justice Roberts attempted to distinguish Humphrey’s Executor on the narrow ground that it involved a multi-member commission rather than a single director. But this distinction finds little support in constitutional text or original understanding. The historical precedents of the Sinking Fund Commission, militia system, and Patent Board suggest that what matters constitutionally is not the number of heads, but the nature of the function being performed and the structural needs of good governance.

More recently, in Collins v. Yellen (2021), the Court extended Seila Law‘s reasoning to invalidate removal protections for the director of the Federal Housing Finance Agency. The Court’s majority again focused narrowly on the single-director structure while failing to engage meaningfully with the historical evidence of founding-era administrative independence. This approach prioritizes a formalistic distinction between single-headed and multi-member agencies over the functional analysis that better aligns with original understanding and constitutional purpose.

The Court’s reasoning in these cases performs a strange alchemy—transmuting the absence of evidence into evidence of absence. It treats the Founders’ silence on modern administrative forms as condemnation, while rendering their actual administrative experiments invisible. This is originalism of convenience, not conviction—an interpretive method that purports to channel the founding generation while ghosting their actual governance innovations.

Moreover, the Court’s claim in Seila Law that the President must maintain “meaningful control” over all who exercise executive power begs the question of what constitutes “meaningful control.” The founding precedents demonstrate that such control need not include unlimited removal power. The President maintained meaningful control over the Sinking Fund Commission through cabinet secretaries, over the militia through his Commander-in-Chief authority, and over the Patent Board through the cabinet members who comprised it—all without possessing unilateral removal authority over every participating official.

And yet, the Seila Law majority’s approach to history focuses narrowly on whether early presidents claimed removal power over specific officials, rather than examining the broader question of whether the founding generation accepted administrative structures where certain functions were insulated from direct presidential control. When this more comprehensive historical lens is applied, the case for independent agencies’ constitutional legitimacy becomes substantially stronger. To uphold the unitary executive theory in its most absolute form requires not textual fidelity but textual infidelity—turning a document written to constrain power into an instrument for its concentration.

The Constitutional Stakes of Today’s Removal Controversy

President Trump’s dismissal of independent agency officials is not merely a technical dispute over removal authority—it represents a frontal assault on the constitutional understanding that has structured American governance since the Founding. If validated by the courts, it would concentrate unprecedented power in presidential hands, allowing the President to exercise direct control over monetary policy, fair competition, labor relations, and election administration.

Consider the FTC specifically. Created in 1914 as the cornerstone of Wilson’s antitrust reforms and deliberately structured to resist political pressure, the Commission embodies Congress’s judgment that market competition requires independent judgment free from executive caprice. Commissioner Rebecca Slaughter was dismissed not because of “inefficiency, neglect of duty, or malfeasance in office”—the statutory standard that has protected Commissioners’ independence for generations—but rather because her policy views diverged from the President’s.

If this stands, future presidents could dismiss Federal Reserve governors who refuse to lower interest rates before elections, FCC Commissioners who don’t favor the President’s political allies in media regulation, or FEC Commissioners who insist on enforcing campaign finance laws against the President’s supporters.

This is precisely the concentration of power that the founding generation feared and designed institutions to prevent. The Sinking Fund Commission was created precisely because the founders understood that certain governmental functions required insulation from direct presidential control to function effectively. Similarly, the Constitution’s militia provisions explicitly divided authority to prevent excessive concentration of power. Modern independent agencies serve these same constitutional purposes.

The through-line from these founding precedents to modern regulatory bodies is unmistakable. Just as the Sinking Fund Commission was insulated from presidential control to manage the nation’s financial obligations with stability and integrity, the Federal Reserve today requires independence to manage monetary policy free from short-term political pressures. Just as the militia system divided authority to prevent concentration of power, the FTC’s multi-member structure disperses regulatory authority to prevent capture by any single interest. And just as the Patent Board exercised independent judgment based on technical criteria rather than political preference, modern regulatory agencies apply specialized expertise to complex economic and social problems.

Presidential Practice and Constitutional Settlement

Proponents of the strong unitary executive theory sometimes claim that presidents have consistently opposed independent agencies throughout American history. But the historical record tells a different story. Between Franklin Roosevelt (who did challenge the FTC’s independence in Humphrey’s Executor) and Donald Trump, no president explicitly argued that independent agencies were unconstitutional or claimed the power to remove commissioners at will. Presidents Eisenhower, Reagan, Clinton, Bush, and Obama—despite their vastly different views on government regulation—all appointed commissioners to independent agencies, respected their statutory removal protections, and engaged with these bodies through the tools of persuasion and appointment rather than removal.

Even when presidents chafed at particular agency decisions, they did not assert constitutional authority to simply fire commissioners whose policy views they disliked. This consistent executive practice represents a form of constitutional settlement that deserves significant weight in constitutional interpretation.

The fact that presidents and Congress have continued to create and maintain independent agencies, within the basic framework established by Humphrey’s Executor, reflects a constitutional understanding that has been woven into the fabric of American governance. This doesn’t mean the Court must slavishly follow every aspect of this practice, but it does suggest that the core constitutional principle—that Congress can create agencies with meaningful independence from direct presidential control—has been accepted by all three branches of government for generations.

A Path Forward: Preserving Constitutional Balance

How should courts resolve this controversy? By recognizing that the Constitution permits varied administrative structures based on the function being performed and the needs of good governance. This approach respects both original understanding, as exemplified by the Sinking Fund Commission, constitutional militia system, and Patent Board, and the constitutional settlements that have developed over time.

The Court should adopt a functional test that considers three key factors when evaluating removal restrictions:

• The nature of the function being performed—where the function involves technical expertise, adjudication, market regulation, or monetary policy, independence from direct political control serves important constitutional values of stability and impartiality.

• The degree of removal protection—not all independence is created equal. “For cause” removal standards that permit presidential removal for inefficiency, neglect, or malfeasance preserve sufficient presidential control while preventing arbitrary dismissal.

• The constitutional values at stake—whether independence in a particular context advances core constitutional values like preventing corruption, ensuring the rule of law, or protecting individual rights.

Some agencies and functions properly belong under direct presidential control. Others—particularly those involving monetary policy, market competition, or fair elections—benefit from meaningful independence. The key constitutional question isn’t whether all executive power must be subject to presidential control, but rather what kinds of structural arrangements best serve constitutional values while preserving the President’s ability to fulfill constitutional obligations.

This approach would uphold the independence of multi-member regulatory commissions like the FTC, FCC, SEC, and Federal Reserve, while perhaps finding more direct presidential control appropriate for certain single-headed agencies or those exercising core foreign affairs and national security functions (such as the National Security Council). It would respect Congress’s authority to structure administration under the Necessary and Proper Clause, while preserving the President’s constitutional role as chief executive.

In the specific cases now percolating through the courts, this approach would likely find Trump’s dismissal of FTC and NLRB commissioners unlawful, as those officials serve on multi-member bodies with statutory protection from at-will removal. For the Merit Systems Protection Board Chair, the question would turn on the specific nature of that office’s functions and its structural relationship to core executive powers.

Conclusion: Constitutional Fidelity and Constitutional Balance

The revolutionary generation that threw off one monarchy did not labor to create another. They constructed a government of divided authority and checked power—precisely the model that modern independent agencies exemplify and that the unitary executive theory would demolish.

The constitutional confrontation before us is thus not merely about administrative design but democratic destiny. When a President claims the power to dismiss any official who displeases him—whether regulating markets, overseeing elections, or determining monetary policy—he seeks not the executive power the Constitution grants but the monarchical power it was written to prevent. The Founders’ ingenious administrative experiments—the Sinking Fund Commission, the militia system, the Patent Board—stand as silent witnesses against this power grab. Their testimony, if we would only listen, reminds us that democracy requires not just accountability but independence, not just energy but restraint, not just power but wisdom in its distribution.

Courts should reject extreme claims of presidential removal power and instead reaffirm the constitutional understanding that has structured American governance since the republic’s earliest days: that certain governmental functions, properly authorized by Congress, may be performed with a measure of independence that serves rather than undermines our constitutional design.

Mauni Jalali is an attorney in San Francisco.