The theory of the unitary executive is being put into practice by Donald Trump, and the field experiment isn’t going well. The theory states that the president has the right to fire, at will, any executive-branch official who does not enjoy civil-service protection. This contradicts longstanding legal precedent that executive-branch officials at independent agencies are appointed for fixed terms at the direction of Congress and that the president can’t, under normal circumstances, remove them. But for more than a decade, the Supreme Court has been chipping away at that independence, weakening necessary government curbs on bad behavior in the business world.
President Donald Trump’s full-tilt embrace of the unitary-executive cult (“I have an Article II, where I have the right to do whatever I want as president”) demonstrates how very empty his claim is to represent the interests of working people. Earlier this week, Trump fired the chairman of the Consumer Finance Protection Bureau, Rohit Chopra. Under Chopra, CFPB limited overdraft fees, removed medical bills from credit reports, and initiated a regulatory crackdown on surveillance by data brokers. It was, Consumer Reports said, “an impressive track record of accomplishments for working families,” but to industry and its conservative allies, that was the problem. The Wall Street Journal, in a January 23 editorial (“Why Is Rohit Chopra Still Employed at the CFPB?”) called Chopra “a source of internal opposition to Mr. Trump’s deregulatory agenda.” The bankers didn’t want him, so he had to go.
Chopra was serving a Senate-confirmed five-year term that wasn’t due to end until late 2026. But in 2020 the Supreme Court ruled unconstitutional a stipulation in the law creating CFPB that its director couldn’t be removed except for cause. Elon Musk, director of the White House advisory panel masquerading as the Department of Government Efficiency, wants to eliminate CFPB altogether, but under unitary executive theory that may not be necessary. Treasury Secretary Scott Bessent, whom Trump named Chopra’s acting replacement, immediately used that power to shut down virtually all the CFPB’s regulatory activity.
Two other independent agencies Trump disabled by applying unitary executive theory are the National Labor Relations Board and the Equal Employment Opportunity Commission, where Trump fired a combined three officials, immediately denying both agencies the quorum necessary to function. At both these agencies the action was unprecedented, as with Chopra, but also illegal.
The EEOC enforces laws prohibiting workplace discrimination. Ordinarily there are five Senate-confirmed EEOC commissioners, two from the president’s party and three from the opposing party; each commissioner is supposed to serve a five-year term and the terms are staggered so you don’t get five vacancies at once. Trump short-circuited that, dismissing Democrat Charlotte Burrows, who wasn’t due to leave until July 2028, and Democrat Jocelyn Samuels, who wasn’t due to leave until July 2026. Because President Joe Biden never nominated a Republican to replace Trump appointee Keith Sonderling, whose term expired in July, the EEOC is now down to only two commissioners, Democrat Kalpana Kotagal and Republican Andrea Lucas. That effectively puts the EEOC out of business; by law the EEOC needs three commissioners to issue regulations. In theory the commission’s general counsel can still initiate lawsuits, but Trump fired the general counsel, too. (General counsels, it’s generally accepted, can be removed by incoming presidents.)
The National Labor Relations Board is the main federal agency that enforces labor laws. People often think that job is done by the Labor Department (which is not an independent agency and predates the NLRB), but that’s mistaken. The Labor Department’s role regulating management-labor relations is more circumscribed, focusing on things like minimum wage and overtime laws. If you’re trying to organize your workplace, or if your employer is violating some labor law, the federal agency you deal with is almost always the NLRB.
Like the EEOC, the NLRB has three board members from the president’s party and two from the opposing party. As with the EEOC, NLRB members serve staggered terms of five years, and without a three-person quorum the commission can’t operate. Unlike the EEOC, the NLRB had two vacancies rather than one when Trump came into office—Democrat Lauren McFerren’s term ended this past December and Republican John Ring’s ended in December 2022—so all Trump had to do was fire a single board member, Democrat Gwynne Wilcox, to deny the NLRB a quorum.
The EEOC was created under Title VII of the 1964 Civil Rights Act, which said commissioners would serve five-year terms but did not otherwise spell out the circumstances of their dismissal. It didn’t have to, because way back in 1935 the Supreme Court had ruled that a president could not dismiss at will commissioners or members of any independent agency that performed quasi-legislative and judicial functions (such as the EEOC, which did not yet exist). The case, Humphrey’s Executor v. United States, arose from President Franklin Roosevelt trying in 1933 to fire a conservative anti-New Deal commissioner of the Federal Trade Commission named William Humphrey. Humphrey, a cranky former representative from Washington state, had been appointed by Roosevelt’s predecessors, Calvin Coolidge and Herbert Hoover, and he sued to get his job back. Humphrey died from a stroke one year after his firing, but Humphrey’s heirs continued the lawsuit on the grounds that Humphrey was owed back pay. They won.
The National Labor Relations Act of 1935 was written while Humphrey’s Executor was still being decided. It therefore spelled out what the Civil Rights Act could later assume: That no board member could be removed before his or her term ended except for “neglect of duty or malfeasance in office.” Even then, the board member had to be given notice and granted a hearing. Trump dispensed with all that.
Trump’s removal of two of the three officials, Burrows and Wilcox, may reflect Trump’s anti-DEI animus as well, because Burrows and Wilcox are both Black women. Indeed, Wilcox is (somewhat surprisingly) the first Black woman ever to serve on the NLRB. All three women are suing to get their jobs back. Wilcox almost certainly will win at the district and appellate levels, and Burrows and Samuels probably will, too.
But it’s less clear that any of them will win when Trump inevitably appeals the case all the way up to the Supreme Court. In the 2020 ruling about the CFPB, Selia Law LLC v. the Consumer Financial Protection Bureau, Chief Justice John Roberts said a president could remove a CFPB chair because the CFPB chair was someone who, “acting alone,” could “wield significant executive power.” That isn’t true of the commissioners and board members Trump fired. Roberts’s decision noted that the high court previously upheld limits on the president’s power to fire in certain cases, but he left open the question of whether it would continue to do so, and some of his language suggested it would not. “In our constitutional system,” Roberts wrote, “the executive power belongs to the President, and that power generally includes the ability to supervise and remove the agents who wield executive power in his stead.”
This is a fight that the Trump administration is eager to begin. At the risk of being unlawyerly, I think the Supreme Court should take a hard look at the person whose executive power it’s thinking about expanding. We’re talking about the craziest and meanest human who ever inhabited the Oval Office. The theory of the unitary executive can, of course, also be opposed on a purely legal plane as a repudiation of accepted regulatory practices stretching back to the establishment of the Interstate Commerce Commission in 1887. But if that doesn’t float your boat, consider how Trump would use it to paralyze or manipulate other agencies: the Securities and Exchange Commission, which polices publicly-traded corporations; the Federal Deposit Insurance Corporation, which polices the banks; and the Federal Reserve, which polices the economy. You think Donald Trump doesn’t want to fire Jerome Powell? He threatened to do so repeatedly during his last term. When Trump gets tired of trashing the government, he just might start trashing the economy. At that point even Trump’s plutocrat allies may regret giving him so much power.