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Presidential Removal Power Should Not Extend to Regulators

A Supreme Court ruling that broadens the President's authority to remove federal regulatory officials raises a basic question of democratic design, whether agencies protecting safety, markets, and consumers should answer to expert mandates and due process or to at-will political command.

Portrait of Mira Solenne

By Mira Solenne / The Regulator / 1177 words

Editorial illustration for "Presidential Removal Power Should Not Extend to Regulators"

The Supreme Court issued four rulings in one day involving matters related to Donald Trump. Three were defeats for him. One was a win: a decision expanding presidential power to remove and replace federal regulatory officials. That split matters, because it clarifies what is actually at stake here. This is not a generic fight about one politician's fortunes. It is a structural fight about presidential authority over federal regulators, and whether the officials who police markets, safety rules, and legal compliance should be able to make difficult decisions without fearing immediate political retaliation.

My answer is no, the President should not have expanded authority to remove federal regulatory officials at will.

The case for expanded removal power is not frivolous. Its strongest advocates make two serious points. First, they argue for democratic accountability. If the public elects a President, that President should be able to direct the executive branch and ensure that regulatory policy reflects the administration's program. Otherwise, power migrates to insulated officials whom voters never chose and cannot easily remove. Second, they argue for energy and coherence. A government in which agency leaders can obstruct the elected executive may become slow, contradictory, and incapable of responding to urgent economic or national challenges. Those concerns are real. No one should romanticize bureaucracy for its own sake.

But the leap from those concerns to at-will removal is precisely where the resolution fails. Accountability is not the same thing as personal control. And speed is not the same thing as sound governance. Federal regulatory officials exist in part because Congress has long recognized that certain state functions require expertise, continuity, and procedural insulation. Banking supervision, consumer protection, environmental enforcement, product safety, communications oversight, labor standards, and similar domains are not campaign props. They involve technical judgments, statutory duties, evidentiary records, and long time horizons. If the head of a regulatory body knows that a disfavored enforcement action, an inconvenient market warning, or a refusal to indulge a donor class can trigger immediate dismissal, the result is not cleaner accountability. It is anticipatory obedience.

That chilling effect is the central danger, and it is more important than abstract arguments about a unitary executive. An at-will removal regime does not need frequent firings to distort agency behavior. The credible threat is enough. Officials start asking not what the statute requires, or what the data show, but what the White House will tolerate. In consumer protection, that can mean easing scrutiny of abusive practices. In financial regulation, it can mean muting alarms before a bubble or collapse. In environmental oversight, it can mean discounting long-tail harms because they are politically inconvenient now and catastrophic later. The public usually sees the damage only after the guardrail has already been removed.

This is why the rhetoric of friction deserves careful treatment. Proponents of expanded removal authority describe regulatory independence as drag, stagnation, or ossification. Sometimes that criticism lands. Agencies can become complacent, excessively process-bound, or insufficiently responsive. But friction in administrative design is often a safety feature. We put friction into the control of dangerous machinery for a reason. A system that can move very fast in the wrong direction is not superior to one that requires justification, notice, record building, and legal discipline before acting. The relevant question is not whether a President can move faster by threatening regulators. Of course he can. The relevant question is whether the public is safer, freer, and more fairly governed when that power exists. The answer is no.

Consider the asymmetry of error. If a President cannot instantly remove a regulatory official, an administration may face delay, negotiation, or litigation. That is costly and frustrating. But if a President can remove regulators at will, the costs of abuse are concentrated on the public and often hardest on people with the least capacity to protect themselves: workers exposed to unsafe conditions, consumers trapped by predatory products, communities downstream of pollution, retirees reliant on honest financial disclosures. A delayed policy preference is reversible. A contaminated water system, a pension collapse, or a preventable market scandal may not be. Duty of care requires us to treat those risks differently.

The best argument on the other side is that presidents should be fully accountable for the executive branch, and that dispersed responsibility lets everyone evade blame. There is truth in that. Independent agencies can muddy lines of responsibility, and some insulation doctrines can become overbroad. It is reasonable to debate the exact scope of tenure protections, the categories of officers who should be removable for cause, and the mechanisms for oversight. Congress should not create islands of unchecked power under the label of expertise. But there is a vast difference between tightening accountability and endorsing at-will removal. The latter is a blunt instrument that solves one problem by creating a more dangerous one: the politicization of compliance itself.

That is the deeper institutional concern. Regulation works only if regulated parties believe the rules will be applied with some consistency, regardless of political loyalty. Markets need credible referees. Consumers need agencies that can say no to politically connected firms. Civil servants need confidence that good-faith enforcement will not end their careers. Once those expectations erode, the whole system tilts toward selective enforcement and public cynicism. People begin to assume, often correctly, that outcomes depend less on law than on access. That is not democratic accountability. It is patronage under administrative cover.

The fact sheet notes that the removal power ruling was characterized as a win for Trump, even though three other rulings that day went against him. That framing is useful not because this question belongs to one man, but because it strips away innocence. Everyone can see how such a power would be used in a highly personal, grievance-driven presidency. The temptation is to reassure ourselves that our preferred future president would use it better. Constitutional and administrative rules should not be designed around that hope. They should be designed around foreseeable misuse.

A mature constitutional order does not assume virtue and then hand out tools of coercion. It assumes pressure, self-interest, error, and occasional bad faith. That is why independent regulatory officials were given some insulation in the first place. Not to thwart elections, but to ensure that statutory obligations to protect health, safety, competition, and market integrity are not nullified by momentary political demands.

There is room for reform. Presidents should be able to supervise policy, appoint leaders, and demand lawful execution. Agencies should be transparent, reviewable, and answerable to Congress and courts. But expanded authority to remove federal regulatory officials at will goes too far. It weakens due process inside the executive branch, invites regulatory capture from the top, and turns public safeguards into conditional favors.

The burden of proof belongs to those who would remove protections, not to those defending them. On that burden, supporters of at-will removal fall short. A government that can fire its referees whenever they enforce the rules against power is not more accountable. It is less trustworthy, less stable, and more dangerous to the people regulation is supposed to protect.