Trump v. Wilcox, a case currently before the Supreme Court’s “shadow docket,” examines whether various federal agencies, which are meant to operate independently of the president, should lose that autonomy.
Wilcox represents the latest in a series of Supreme Court cases addressing the “unitary executive” theory, which, in its most extreme interpretation, would grant presidents authority over every federal position outside of Congress or the judiciary. The outlook for those supporting agency autonomy in this case appears bleak.
In earlier unitary executive cases, the Republican majority on the Court has consistently demonstrated a strong commitment to a broad interpretation of presidential power, including the ability to dismiss officials intended to remain free from political influence.
Ninety years ago, in Humphrey’s Executor v. United States (1935), the Supreme Court upheld legislation ensuring that the five commissioners of the Federal Trade Commission (FTC) could only be removed for “inefficiency, neglect of duty, or malfeasance in office.” The Court asserted that FTC members “are called upon to exercise the trained judgment of a body of experts,” contributing their specialized knowledge even when their views diverge from politically favorable ones.
Building on this precedent, Congress has established multiple comparable agencies, with the Federal Reserve being the most significant. Like the central banks of other successful countries, it is intended to set interest rates based on expert economic analysis rather than political expediency. The ramifications of removing the Fed’s independence would be grave. In 1971, Fed Chair Arthur Burns yielded to President Richard Nixon’s pressure to stimulate the economy for Nixon’s re-election, a move often cited as a cause of the ensuing period of “stagflation” characterized by sluggish growth and high inflation.
The current Republican justices’ contempt for Humphrey’s Executor and the very idea of independent federal agencies is stark. Beginning with Free Enterprise Fund v. Public Company Accounting Board (2010), the Court has gradually curtailed Congress’s ability to protect government officials from presidential oversight, a trend that intensified during Trump’s reshaping of the judiciary.
The unitary executive theory even prominently featured in Trump v. United States (2024), the ruling establishing that Trump could employ presidential powers for unlawful activities, with the Court invoking this theory to assert that Trump wields complete control over the Justice Department, even when directing prosecutors to pursue his political adversaries.
Currently, Wilcox involves two federal officials—one at the National Labor Relations Board and another at the Merit Systems Protection Board (MSPB)—who were dismissed by Trump in violation of statutes ensuring their protection from arbitrary termination. Trump’s aim to assert comprehensive control over the MSPB is particularly pivotal since this agency is meant to shield civil servants from politically motivated dismissals. If Trump succeeds in gaining authority to remove MSPB members, he could potentially dismantle civil service protections and anti-corruption reforms instituted since the Chester A. Arthur administration.
More generally, Wilcox offers the Republican majority on the Court a chance to completely overturn Humphrey’s Executor, which could lead to the abolition of independence for all federal agencies, including the Fed.
Considering the Court’s previous rulings on the unitary executive, there is scant reason to believe that any significant aspect of Humphrey’s Executor will endure. Even as we witness the chaos Trump has generated in a few short months in office—marked by shifting tariffs, disregard for court directives, and the abandoned initiative to defund a facility housing thousands of ISIS fighters—it remains theoretically plausible that at least some members of the Court may question whether now is the appropriate moment to broaden presidential powers further and grant him total oversight of the Federal Reserve.
Understanding the Unitary Executive
The Constitution is known for its ambiguity. It prohibits “unreasonable” searches without defining what that entails and protects against “excessive” fines and “cruel and unusual punishments,” offering no clarity on those terms either. One clause bars states from infringing on “the privileges or immunities of citizens of the United States,” a phrase that remains elusive even to the Supreme Court.
Consequently, much of U.S. constitutional law exists as a narrative framework. In the early 20th century, as the Court leaned towards industrial conservatives, justices interpreted vague constitutional language prohibiting states from denying anyone “liberty…without due process of law” as a barrier to labor rights like a minimum wage. In contrast, during the 1970s with more liberal justices, the Court spun a different narrative to assert that these same ambiguous terms guarantee abortion rights. In both scenarios, the persuasive power of these narratives lasted only as long as a majority of justices endorsed them.
The unitary executive theory emerges from a similar narrative structure. Republican justices base it on a constitutional provision stating that “the executive Power shall be vested in a President of the United States of America.” Justice Antonin Scalia encapsulated this provision in his dissenting opinion from Morrison v. Olson (1988) by asserting that it “does not mean some of the executive power, but all of the executive power” resides with the president.
Proponents of the unitary executive theory contend that the president must possess the authority to appoint and dismiss any official performing any “executive” function.
However, the ambiguity surrounding the term “executive” is far greater than the Republican justices assert. In Morrison, Scalia argued that prosecutorial power is a “quintessentially executive function” inherently under presidential authority. This view was unanimously adopted by all six Republican justices in their decision regarding Trump immunity, justifying Trump’s belief that he can direct the Justice Department to prosecute his adversaries without consequence.
Nevertheless, there is limited historical evidence to support Scalia’s assertion about the role of prosecutors. For much of early American history, criminal prosecutions were generally initiated by private lawyers who sought grand jury indictments. Judges also held the power to initiate prosecutions, a capacity they still maintain today. Under existing law, federal district judges can appoint interim U.S. attorneys, overseeing the majority of prosecutions within their jurisdictions.
Ultimately, the most pressing issue at stake in the Wilcox case is not whether the unitary executive theory has a legitimate basis in the Constitution or if the Framers intended to prohibit independent agencies. What truly matters is that all Republican justices ardently believe in the narrative Scalia presented in his Morrison dissent. Justice Brett Kavanaugh even stated in 2016 that Morrison should be overruled, expressing a desire to “put the final nail” in that decision.
It seems probable that Republican justices will leverage Wilcox to articulate the narrative they have long awaited—potentially explicitly overturning Humphrey’s Executor or undermining it to the extent that it becomes ineffective. Such a shift could position Trump as the most powerful president in U.S. history.
Indeed, should the Court go as far as granting Trump complete authority over the Fed, the powers he would then possess could overshadow the disarray brought about by his tariffs, reducing it to minor fluctuations within the global economy.