A Constitution Day Roadmap For The Supreme Court And How To End The Administrative State

The Supreme Court’s ruling in Trump v. Slaughter gives us a reason to celebrate Constitution Day. In that case, SCOTUS corrected a long-standing error. It overruled a 1935 decision that hobbled the president in his constitutional duty to run the executive branch of the federal government.

Now it’s time for the court to correct some of the other mistakes it made around the same time — mistakes that have distorted the Constitution, reduced our freedom, and driven the U.S. government to the edge of bankruptcy.

Why Trump v. Slaughter Was Correct

Trump v. Slaughter voided a statute that, while allowing the president to appoint members of the Federal Trade Commission, tried to prevent him from removing them before the expiration of a seven-year term. The court noted that the Constitution gives executive power to the president, not to Congress. Executive power includes the authority to fire officials who are not in sync with the program the people voted for.

The Slaughter decision was correct for two reasons. The first is a technical one: Even when a presidential appointment is subject to Senate approval, it is the president alone who actually appoints. When the Constitution was adopted, it was universally understood that a power to hire included a power to fire.

Another reason the Slaughter decision was correct is practical: The president cannot carry out his constitutional duties as chief executive unless he can dismiss executive branch officials.

Judicial Malpractice

The case overruled in Slaughter was one of many mistakes the court made during the period from about 1920 to 1950. This was truly a low point for the Supreme Court. Its constitutional and historical analysis was often dreadful, even when it reached the correct result. It was influenced by authoritarian ideals then popular among the elite, but directly contrary to the spirit of the Constitution.

Moreover, for part of that period, the court faced enormous political pressure. That pressure eased only after 1940, when political hacks with little or no prior judicial experience dominated the bench.

The decisions issued during that period, particularly around 1940, allowed Congress to stray far outside its constitutional authority. They also let Congress hand over lawmaking power it really didn’t have to unelected bureaucrats insulated from the president and unaccountable to the voters.

How to Restore the Constitutional Balance

Restoring the document we celebrate on Constitution Day requires further action from both Congress and the courts.

First, Congress must stop writing laws that give executive agencies almost limitless discretion. Because the Slaughter case affirmed that those agencies are not independent of the president, Congress may have reason to write its laws more carefully.

Second, the court should clarify another poorly written case — the 1926 decision in Myers v. United States. The case correctly held that the president can fire executive branch officials. But it further claimed, erroneously, that the Constitution gives the president an undefined reservoir of “executive power.”

Actually, the Constitution’s text and surrounding history show that the president has only powers listed in the Constitution, together with some implied authority. There is no grant of an undefined “executive power.” The claim in Myers must be corrected to ensure that the Slaughter decision does not unduly increase already-excessive presidential authority.

Third, the great Chief Justice John Marshall once pointed out that when a federal law exceeds the power granted by the Constitution, it is the court’s “painful duty … should a case requiring such a decision come before it, to say that such an act was not the law of the land.”

During the latter part of the 1920-1950 period, the court entirely abdicated this “painful duty.” Decisions from that era pretended that Congress’s power to tax includes power to spend without limit. They pretended that Congress’s authority to regulate interstate commerce includes authority to govern the entire U.S. economy. They pretended that the federal government’s constitutional power to manage its property somehow grants it the right to own more than a quarter of the country’s real estate.

In this area, the court needs to start doing its job again. One good step would be to accept a pending case that offers an opportunity to overrule the Court’s absurd 1942 decision in Wickard v. Filburn.

Finally, the Supreme Court should modify cases that allow Congress to delegate huge swaths of legislative authority to federal bureaucrats. While the Constitution allows Congress to delegate matters of detail to the executive branch, it does not permit Congress to divest itself of core legislative responsibilities.

To a certain extent, the Supreme Court has already begun this step with its recent “major question doctrine” cases. They put the burden of proof on agencies, claiming that existing statutes grant them vast new powers.

Restoring the constitutional balance will take time, if only because the Court cannot act unilaterally. It must take cases as they come.

But Constitution Day 2026 is a good time for the justices to commit to the process.

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Robert G. Natelson is a former constitutional law professor and senior fellow in Constitutional Jurisprudence at the Centennial Institute, the conservative think tank of Colorado Christian University. He authored “The Original Constitution” and is a contributor to the Heritage Foundation’s “Heritage Guide to the Constitution.”