–José Ignacio Hernández, Visiting Scholar, Boston College Law School; Adjunct Professor, Washington College of Law, American University
Introduction
The majority decision in Trump v. Slaughter[1] was not a surprise. As I previously explained in commenting on Trump v. Wilcox[2], the most likely scenario was that the Supreme Court majority would reinterpret the constitutional foundations of independent agencies and ultimately overrule Humphrey’s Executor v. United States.[3]
In a 6-3 decision written by Chief Justice John Roberts, the Supreme Court concluded that the Federal Trade Commission (FTC) exercises executive functions and that, as a result, the commissioners act within the scope of the executive power that Article II of the Constitution vests in the President. Consequently, Congress cannot deprive the President of control over the commissioners as executive officers, including removing them at will.
However, the decision did not provide any clear constitutional definition of “executive power” to determine when an office created by Congress acts under Article II. Inevitably, this ambiguity created tension with the decision adopted the same day in Trump v. Cook, No. 25A312, 609 U.S. ___ (2026), which at least indirectly affirmed the constitutionality of statutory “for cause” provisions regarding the Board of Governors of the Federal Reserve System (FRB).
Before Slaughter, the FTC was independent because it did not exert substantial executive power; after Slaughter, the FTC is not independent because it does. However, the FRB is independent, although it also seems to exert executive power.
This possible contradiction highlights what I see as the key feature of U.S. administrative law: its absence of solid constitutional roots. In contrast, Hispanic-American law (which generally followed the presidential system of the U.S.) demonstrates that administrative law can be strongly grounded in constitutional principles, offering a clear substantive concept of executive power that helps determine the possible statutory limits on presidential control over agencies.[4]
Therefore, my purpose in this post is to put in evidence the “elephant in the room”: the fragile constitutional foundations of U.S. administrative law, as demonstrated by the new interpretation of the independent agencies.
A Unitary Executive Theory Without a Constitutional Theory of the Executive Power
The constitutional interpretation provided by Chief Justice Roberts, in Slaughter, that overrides Humphrey’s, can be summarized in four premises:
- Article II of the Constitution vests in one body -the Presidency- the entire executive power.[5]
- To properly exercise that power, the Presidency requires appointing officers who will serve as envoys of the President and, hence, be accountable to him and, ultimately, removable by him at will.[6]
- The President’s control applies to all offices that “execute” a congressional mandate against private parties.[7]
- Not all offices Congress creates exercise executive powers under presidential control based on Article II, though.[8] That is, precisely, the case of the FRB[9], as was indirectly concluded in Cook[10].
The only rational way to apply those premises is to define, from a constitutional perspective, the substantive nature of the executive power. To determine whether the “for cause” clause regarding the FTC is compatible with Article II, it is necessary to determine if the statutory functions of this agency are, in substance, the result of the exercise of the executive power.
But the Supreme Court avoided entering into this question. The outcome is tautological reasoning: the FTC “unquestionably exercises executive powers”, and because its functions “fall well within the heartland of the executive power”, it is not necessary “to define the bounds of what such power entails”.[11]
The override of Humphrey’s does not solve the problem that Humphrey’s created. As the Court concluded, “all that is left of Humphrey’s is its observation that an agency that “exercises no part of the executive power” need not fall within the rule of Presidential removal”.[12] A similar vague conclusion prevails in Slaughter: “not all offices created by Congress necessarily come with executive or even sovereign power attached”.[13] Alas, without defining, from a constitutional perspective, what is the content of such power, it is not possible to determine whether the office falls within the rule of Presidential removal.
The result is a paradox: a unitary executive theory without a constitutional theory of the executive power.
The Unitary Power Beyond the Execution of the Law: The Hispanic lessons
Although the Court declined to address the constitutional concept of executive power, it offered a hint: executive power is the “execution” of congressional mandates against private parties.[14] But this reasoning fails to capture the constitutional essence of executive power and does not provide a rational answer regarding independent agencies.
These flaws are evident in the interpretation of the FRB, advanced in Cook. This agency also “executes the law.” Despite this executive role, it falls outside the scope of presidential removal power derived from Article II.[15] Therefore, another criterion should determine when an office exercises executive power within the scope of Article II.
This problem was addressed in Hispanic administrative law, based on a “self-evident” observation of Austrian authors such as Merkl: a court also “executes” the law when it adjudicates a case, even though it does not exercise executive power.[16]
The “execution of the law” is not a parameter that defines the executive, but a characteristic of the executive functions that must be subordinated to the law. Here, in any case, the “law” is not limited to the statutory mandates, because it also includes the whole legal order.[17]
In Hispanic law, it is clear that executive power extends beyond just executing laws to restricting private rights. For example, when the public administration constructs a bridge, it is not merely “executing” statutes. The same applies to administrative actions aimed at protecting public health. In these cases, rather than simply “executing” statutes, the public administration serves the public as a fiduciary institution responsible for fulfilling the government’s duties.
Consequently, what should determine an agency’s “executive” nature is not the execution of Congress’s mandates, but the concrete implementation or management of the government´s task, based on direct contact with individuals to attend to their needs, oriented toward the common good.[18] Under the principle of separation of powers, the executive branch is the only branch of government charged with this service-oriented or fiduciary function: neither the legislature nor the judiciary is constitutionally organized as an institution placed at the service of individuals.[19]
The executive power, with this substantive constitutional content, is vested in the Presidency, which stands as the highest authority over all the other executive bodies that, within the Executive Branch, also exercise executive power under Article II. Setting aside the lack of precision in the constitutional definition of executive power, Slaughter offers the best clarification: independent agencies do not exercise “quasi” legislative or judicial functions, but rather the executive power vested in the Presidency by Article II.
This comparative perspective also offers an alternative approach to independent agencies: independent branches of government vested with functions closely related to the key pillars of constitutionalism. That is the case of the National Electoral Council, created by Article 217 of the Ecuador Constitution as a separate branch. In those cases, the separation of powers beyond the traditional tripartite design resolves any constitutional problem.[20]
The Risks of the Unitary Executive Theory
The new constitutional interpretation advanced in Slaughter, according to Justice Gorsuch’s concurrence, creates a new problem: the “concentration” of functions in these agencies is now transferred to the Presidency. In the dissenting opinion, Justices Sotomayor, Kagan, and Jackson went further, challenging that without independence from the Presidency, the regulatory agencies will distort the “structure of the Government”, expanding the presidential powers towards a theory of a “unitary, total executive control”.[21]
Some cases in comparative constitutional law resonate with these risks.[22] In countries like Venezuela, the abusive presidential powers moved to advance political control over independent administration, including the Central Bank.[23] But these cases illustrate that the proper solution to prevent those abuses is not agency independence, but effective implementation of the administrative law´s controls.[24]
In that regard, independence is a misleading characteristic. It seems to reflect the principle that some agencies must be independent of the Presidency, considering that presidential control is, by design, improper. However, independence is a general principle that applies to all executive bodies. As the Spanish scholar Tomás-Ramón Fernández explained, all public administrations must be independent, in the sense that they must act objectively to serve the people.[25]
Also, the focus on independence from the Presidency does not consider, as I explained elsewhere, that “regulatory neutrality” prevents abusive or excessive control not only from the Presidency but also from Congress and, in particular, private firms. An agency independent from the Presidency but captured by the private firms is not independent at all.[26]
Excluding regulatory agencies from Article II to prevent abusive presidential control would be like preventing agencies from adjudicating cases to prevent arbitrary decisions. The remedy to prevent abusive presidential control is administrative law, as long as it is defined from a comprehensive constitutional perspective.
And this is the “elephant in the room” in the U.S. Because administrative law is only the law that applies to regulatory agencies, it lacks the systematic integrity to implement a rational system of rules, principles, and values that moves beyond the agencies to include the whole executive organization acting within the scope of Article II, including the Presidency.
In many ways, the confusing interpretation of independent agencies highlights this narrow, statute-focused view of administrative law, which has weak constitutional roots. Therefore, the unresolved questions remain: what, substantively, is the nature of executive power that helps define the scope of Article II? Why is the FTC, which exercises executive authority, governed by the presidential removal powers of Article II, while the FRB, which also exercises regulatory powers, is not?
Another unsolved problem is the constitutional status of the independent accountability institutions, such as the Federal Electoral Commission. A possible solution is to conclude that those bodies do not exert regulatory powers and, consequently, are not subject to Article II.[27]
The best solution to address the risk of agencies exercising regulatory powers outside the scope of presidential authority is not to create the fiction of executive bodies operating outside Article II, but to reframe administrative law toward a rational constitutional system that provides the foundations for a tempered public administration, including the Presidency in the exercise of executive powers.[28]
Suggested citation: José Ignacio Hernández, The Unitary Executive Theory after Slaughter: A Comparative Hispanic Perspective, Int’l J. Const. L. Blog, Sept. 1, 2026, at: http://www.iconnectblog.com/the-unitary-executive-theory-after-slaughter-a-comparative-hispanic-perspective/
[1] No. 25-332, 609 U.S. ___ (2026).
[2] Trump v Wilcox 605 US ___ (2025). See: José Ignacio Hernández, The Constitutional Foundations of Independent Agencies: A Comparative Perspective Between the U.S. and Spain, Int’l J. Const. L. Blog, Sept. 18, 2025, at: https://www.iconnectblog.com/the-constitutional-foundations-of-independent-agencies-a-comparative-perspective/
[3] 295 U.S. 602 (1935).
[4] The U.S. Constitution inspired the presidential system in Hispanic America, resulting in a model in which the Presidency is the highest authority among all bodies organized within the Executive Branch. But while the Hispanic administrative law -inspired by Spain, Italy, France, and Germany- builds a constitutional theory of the Presidency as the highest administrative authority, the U.S. lacks this systematic and constitutional approach. Regarding the influence, see Allan R Brewer-Carías, Las revoluciones americana, francesa e hispanoamericana y sus aportes al constitucionalismo moderno (4th edn, Instituto Internacional de Derecho Administrativo–Editorial Temis 2025).
[5] “Our Constitution creates three branches, but only one President” (slip op 35).
[6] “Because these officers were subject to the President’s superintendence, they had to be removable by him at will” (slip op 8).
[7] “When an agency “executes” a congressional mandate against private parties, it exercises executive power—no ifs, ands, or quasis about it” (slip op 22).
[8] This premise is based on Myers v. United States, 272 U.S. 52 (1926). In that case, the Supreme Court concluded that executive officers exert the power vested by Article II in the Presidency. Therefore, according to Chief Justice Roberts’ opinion, the Court has “left open the possibility that some functions traditionally handled outside the Executive Branch may not be encompassed by Myers’s general rule” (slip op 27).
[9] “And one example we have given of an entity that may have such a unique role is the Federal Reserve, to the extent that it follows in the distinct historical tradition of the First and Second Banks of the United States—” (slip op 27-28).
[10] In a 5-4 decision written by Chief Justice Roberts, the Court denied the Government’s application for a stay of the District Court’s injunction, which had blocked President Trump’s removal of Cook, a Governor of the Federal Reserve Board, pending appeal. Although this was not a merits ruling, the Court briefly concluded that, because of the Federal Reserve’s unique historical origins tied to the particularities of monetary policy, Congress may restrict the President’s power to remove a Governor except “for cause” (slip op. 28, 32).
[11] Slip op 27.
[12] Slip op 28.
[13] Slip op 27.
[14] Slip op 22. When examining the functions of the FTC, the Court concluded that this agency undertake the very essence of the execution of the law (quoting Bowsher v Synar, 478 US 714 (1986) (slip op 25).
[15] Hence, as Justice Barrett concluded in her dissent opinion in Cook, “the Court’s holding is in serious tension with Trump v. Slaughter, which we also decide today. Slaughter announces a categorical rule: Whenever “an agency ‘executes’ a congressional mandate against private parties, it exercises executive power” and must be subject to plenary executive control—“no ifs, ands, or quasis about it.” Id., at ___ (slip op.22). Yet here, the Court claims a special exception “‘sanctioned by history’” and based on the Federal Reserve’s role in setting monetary policy”. Trump v Cook, No 25A312, 609 US ___ (2026) (Barrett J, dissenting) (slip op 2).
[16] The execution of the law means the governmental action of interpreting, construing, applying, and ultimately enforcing statutes in specific cases. The judiciary performs similar functions; however, it does not exercise executive functions. See Adolfo Merkl, Teoría general del Derecho administrativo (Comares 2004) 56.
[17] As reflected in Article 138 of the Dominican Constitution, the public administration acts with “full submission to the juridical set of laws of the State”.
[18] As concluded in Argentina by Juan Carlos Cassagne, ‘Reflexiones sobre el bien común y el interés público como fines y principios de la actividad estatal’ (2021) 15191 El Derecho.
[19] This concept, for instance, can be derived from Articles 141 of the Venezuelan Constitution and 138 of the Dominican Republic Constitution. Generally see Allan Brewer-Carías, ‘Sobre el concepto del Derecho Administrativo’ in Jaime Rodríguez-Arana Muñoz and Libardo Rodríguez Rodríguez (dirs) and María del Carmen Rodríguez Martín-Retortillo (coord), Curso de derecho administrativo iberoamericano (Instituto Nacional de Administración Pública (INAP)–Comares 2015) 25.
[20] Regarding electoral commissions as a “fourth branch”, see Mark Tushnet, The New Fourth Branch: Institutions for Protecting Constitutional Democracy (Cambridge University Press 2021), 123. Although the U.S. does not have such independent branches, David Landau has analyzed independent accountability institutions that do not exercise executive power but instead serve a review or comptroller function to protect democracy, such as the Federal Election Commission. David Landau, ‘Courts Are Not Enough: Independent Accountability Institutions and the Protection of Democracy in the United States’ (2026) 2026 University of Illinois Law Review, 1149.
[21] Slip op 46.
[22] David M Driesen, ‘The Unitary Executive Theory in Comparative Context’ (2020) 72 Hastings Law Journal 1 (concluding, from a comparative perspective, that “centralized head of state control over the executive branch of government provides a pathway to autocracy suggests that the Court committed a grave error in Seila Law”, 54).
[23] As I concluded in José Ignacio Hernández, ‘Comentarios a la reforma de 2015 de la Ley del Banco Central de Venezuela y su defensa por la Sala Constitucional’ (2016) 145–146 Revista de Derecho Público 107. The root cause of the politicization of the Central Bank was not the lack of statutory independence, but the despotic presidential actions that subordinated monetary policy to political objectives. In short, the problem was not a lack of independence but failed administrative law.
[24] Regarding the risks of abuse of presidential power that derives from Slaughter, see Cass Sunstein, ‘The Unitary Executive’ (Cass’s Substack, 29 June 2026) https://casssunstein.substack.com/p/the-unitary-executive-b11 accessed 15 August 2026 (observing that “White House control increases political accountability, which can do some good. But it imposes big risks, too. There is more room for self-dealing, favoritism and corruption, whatever political party controls the presidency”. The institutional solution to those risks is to strengthen administrative law controls to ensure tempered administrative oversight of agencies.
[25] Tomás-Ramón Fernández, ‘Reflexiones sobre las llamadas autoridades administrativas independientes’ in Administración Instrumental: Libro Homenaje a Manuel Francisco Clavero Arévalo, vol II (Civitas 1994) 439.
[26] José Ignacio Hernández, Derecho administrativo y regulación económica (Editorial Jurídica Venezolana 2006) 111.
[27] This is another risk of the interpretation adopted in Slaughter. As Landau noted earlier, “by allowing the President to remove the heads of independent agencies at will, the Court is not merely allowing presidential will to control in the case of policy disagreement; it is allowing the President to capture institutions designed to protect these sensitive democratic weak points, either neutralizing them or turning them into anti-democratic tools” (‘Courts Are Not Enough: Independent Accountability Institutions and the Protection of Democracy in the United States’, 1204). One possible constitutional interpretation is that independent accountability institutions do not “execute” a congressional mandate against private parties and therefore are not covered by Article II.
[28] At its origins, the U.S. administrative law doctrine, from a comparative perspective, studied administrative law based on the public administration as the organization of the Executive Power. See, for instance, Bruce Wyman, The Principles of the Administrative Law Governing the Relations of Public Officers (Keefe-Davidson Co 1903) 2. But the emergence of regulatory agencies diverted attention to a statute-centered approach, resulting in weak constitutional foundations: rather than analyzing the substantive definition of executive power in Article II, the focus has been on the statutory “delegated power,” resulting in the oblivion of the constitutional foundations of administrative law. Centering administrative law in public administration does not, of course, mean allowing a despotic administrative regime. As Hispanic law demonstrates, defining administrative law within public administration includes defining it as a tempered power, whose actions -to serve the people- are subordinated to the whole legal order.