John Roberts Debates Himself In Executive Authority Rulings

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.

Justice Alito, joined by Justice Gorsuch, approaches the problem differently. Roberts relies heavily on historical practice, but Alito insists that historical practice cannot substitute for constitutional text. History may explain why Congress preferred an independent central bank; it does not necessarily establish that the Constitution permits one. The distinction Roberts draws may be historically attractive, but Alito questions whether it is constitutionally coherent.

Justice Barrett’s dissent takes yet another path. Without necessarily embracing the broader constitutional arguments advanced by Thomas and Alito, she challenges the majority’s statutory analysis and its decision to deny interim relief. Even accepting Roberts’ premise that the Federal Reserve occupies a special constitutional position, Barrett argues that the court has improperly intervened at the preliminary stage and misconstrued the governing standards.

Equally remarkable is the alignment on the other side. Justices Sotomayor, Kagan, and Jackson joined Roberts’ opinion in Cook after dissenting vigorously from his Article II analysis in Slaughter. The result is one of the most unusual coalitions of the term: the court’s three liberals joining Roberts and Kavanaugh to preserve Federal Reserve independence, while four conservative justices divide into three separate dissents attacking Roberts from different directions.

The lineups themselves tell an important story. Nobody disputes that Roberts’ historical account is sophisticated. Nobody disputes that the Federal Reserve occupies a uniquely important place in the American economy. The disagreement is whether those facts answer the constitutional question.

That is why these opinions deserve to be read together. Roberts plainly intended them to be companion pieces. Slaughter restores the constitutional principle that executive officers remain accountable to the president. Cook identifies what Roberts believes to be a historically grounded limitation on that principle. Whether those two propositions ultimately reinforce one another or undermine one another is the debate Roberts himself has now launched.

Chief Justice Roberts undoubtedly believes he has reconciled two competing constitutional values: democratic accountability and institutional independence. Perhaps he has. Or perhaps he has simply concluded that the Federal Reserve is too important to disturb. The dissents suggest those are very different propositions. Whether history remembers these paired opinions as a principled reconciliation or simply another instance of Chief Justice Roberts splitting the baby may determine the future course of the court’s separation-of-powers jurisprudence.

Dr. John Eastman is a senior fellow at the Claremont Institute and director of the Institute’s Center for Constitutional Jurisprudence. On behalf of the institute, he filed an amicus curiae brief in the Wolford v. Lopez case, urging the court to invalidate, as it did, Hawaii’s restrictions on carrying firearms on private property open to the public without prior express permission from the property owner.