Taken together, Cook and Slaughter reveal a chief justice once again attempting to split the baby between constitutional principle and institutional pragmatism.
Just minutes apart Monday morning, Chief Justice John Roberts handed down two of the most consequential separation-of-powers opinions of the Supreme Court’s October 2025 term.In one, he overruled one of the New Deal’s foundational precedents and dramatically restored presidential control over the executive branch. In the other, he preserved the independence of the nation’s most powerful economic institution by denying the president authority to remove a Federal Reserve governor at will. Both opinions were written by Roberts. Both relied heavily on history. And taken together, they reveal a chief justice once again attempting to split the baby between constitutional principle and institutional pragmatism.
That pairing was no accident. Roberts effectively invited readers to compare the two decisions. In Trump v. Slaughter, he expressly reserved the question of whether the Federal Reserve occupies a unique constitutional position because of its historical pedigree. Minutes later, in Trump v. Cook, he answered the very question he had left open. The result was a pair of opinions that simultaneously restored presidential authority and preserved one of the last great bastions of institutional independence. The only real question is whether the two opinions can comfortably coexist.
In Slaughter, Roberts wrote one of the strongest defenses of presidential authority in modern Supreme Court history. The opinion is not presented as an expansion of executive power but as a restoration of the Constitution’s original design. Beginning with Article II’s vesting clause, Roberts traces the Constitution’s understanding of executive power through The Federalist Papers, the Decision of 1789, and Myers v. United States. The executive power, he explains, was vested in a single president precisely so the American people would know whom to praise or blame for the execution of federal law. Accountability requires authority. A president who cannot remove those exercising executive power cannot truly be held responsible for how that power is exercised.
From that premise, the rest of Slaughter follows naturally. The Federal Trade Commission today bears little resemblance to the modest expert body described in Humphrey’s Executor in 1935. It writes rules carrying the force of law, investigates violations, prosecutes enforcement actions, and adjudicates disputes. Although writing rules carrying the force of law is a legislative function, and adjudicating disputes is a judicial function (which raises other separation-of-powers concerns), investigating and prosecuting violations are quintessential executive functions.
Roberts therefore concludes that the Constitution simply does not permit Congress to insulate FTC commissioners from presidential removal. In doing so, he finally overrules Humphrey’s Executor, describing it as a precedent whose reasoning has steadily eroded under the court’s later separation-of-powers decisions until it became, in effect, “a result in search of a rationale.”
Standing alone, Slaughter represents the culmination of a constitutional project for which my colleagues at the Claremont Institute and I have been advocating for decades. At the court, success in that project began with Free Enterprise Fund, continued through Seila Law and Collins, and now restores the president’s authority over those exercising executive power.
Then came Cook. The shift in Roberts’ methodology is immediately striking. Gone are the Decision of 1789 and Chief Justice Taft’s opinion in Myers. Instead, Roberts opens with a lengthy history of American central banking. He recounts the Bank of North America, Hamilton’s First Bank of the United States, the Second Bank, Andrew Jackson’s destruction of that institution, the financial panics of the 19th century, and Congress’s eventual creation of the Federal Reserve. Rather than asking only what Article II requires, Roberts asks what America’s constitutional tradition has long accepted.
That history matters because Roberts concludes that the Federal Reserve occupies a unique constitutional position. Like Hamilton’s national bank, the modern Federal Reserve was deliberately insulated from day-to-day political pressure. Its independence, Roberts argues, is not an accidental feature but an essential part of its constitutional pedigree. The president therefore may not simply remove a governor whenever he wishes, and before any removal may occur, the governor is entitled to the procedural protections Congress prescribed. Left unaddressed is Justice Thomas’ thorough rebuke in dissent that the early national banks did not exercise executive authority as the modern Federal Reserve does.
Roberts certainly has a historical point, though one that largely begs the constitutional question. The founders understood the dangers of politically manipulated monetary policy. Hamilton himself insisted that public confidence in a national bank required independence from immediate political pressures. Roberts demonstrates that concern did not originate with the New Deal but reaches back to the earliest years of the republic.
Yet that is precisely where the constitutional tension emerges. If Slaughter is correct that Article II requires presidential control over those exercising executive power, why is the Federal Reserve different? Roberts’ answer is history. The dissenters’ answer, each in a different way, is that history alone cannot overcome constitutional structure.
Justice Thomas’ dissent appears to pose the most fundamental challenge. Once Humphrey’s Executor is gone, he asks, what constitutional principle permits this remaining island of independence? If Federal Reserve governors are appointed under Article II, exercise significant governmental authority, and are removable only by the president, why are they not subject to the same constitutional rule Roberts had announced only minutes earlier? Thomas presses Roberts’ own premises to their logical conclusion: If Article II means what Slaughter says it means, there is no Federal Reserve exception. --->READ MORE HERE
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