Separation of Powers

Here Are Some Ways SCOTUS Can Constrain Federal Agencies That Are Now Subject to Trump's Untrammeled Control

The Supreme Court has "no shortage of tools" to enforce the separation of powers, Justice Neil Gorsuch notes. "The only real question is whether we will use them."

Jacob Sullum | 6.30.2026 4:00 PM

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The Framers established a federal government consisting of three branches that were supposed to exercise distinct functions: legislative, executive, and judicial. But beginning in the late 19th century, Congress created dozens of "independent" agencies that exercise all three functions.

On Monday in Trump v. Slaughter, the Supreme Court addressed one puzzle posed by that situation: the purported independence of those agencies. But as Reason's Damon Root notes, that decision did not address the line-crossing authority of ostensibly executive agencies that also effectively make law and adjudicate cases. Instead, the Court concentrated those powers in the hands of the president—a development that should worry anyone concerned about executive overreach.

Fortunately, that is not the end of the matter. Even without congressional intervention, the Supreme Court can restrict the actions of presidentially controlled administrative agencies by enforcing the separation of powers. Potential tools include the nondelegation doctrine, the major questions doctrine, and statutory interpretation unconstrained by the deference that the Court repudiated in 2024. Agency actions also can be challenged under constitutional provisions guaranteeing due process and the right to trial by jury.

In Trump v. Slaughter, the Court answered a question that presidents of both major parties had been asking for more than a century: If agencies such as the Federal Trade Commission (FTC) are part of the executive branch, how can Congress, consistent with the separation of powers, restrict the president's authority to remove the officials who run them? It can't,........

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