Kaden Carr (University of Texas at Austin, Department of Government, Students) has posted A Categorical Rule and a Carveout: Competing Methods in Slaughter and Cook on SSRN. Here is the abstract:
The Supreme Court’s 2026 removal decisions appear to mark the end of the constitutional order established by Humphrey’s Executor v. United States while leaving uncertain what will replace it. In Trump v. Slaughter, the Court announced a categorical rule: when an agency executes federal law against private parties, it exercises executive power, and the officers exercising that power must remain removable by the President. Yet the same day, Trump v. Cook upheld for-cause removal protection for Federal Reserve Governors on the ground that the Federal Reserve follows in the historical tradition of the First and Second Banks of the United States.
This Article argues that the two decisions are methodologically incompatible. It first traces the rise of independent administration under Humphrey’s Executor and the Court’s subsequent movement toward presidential control. It then identifies three tensions between Slaughter and Cook. The Federal Reserve exercises regulatory and enforcement powers that Slaughter categorically classifies as executive; Cook relies on a historical analogy whose scope depends upon the level of generality at which that history is described; and the independence that Slaughter treats as inconsistent with democratic accountability becomes in Cook an institutional value the Constitution permits the Court to preserve. Together, these tensions leave no clear principle for determining when historical tradition can overcome Slaughter’s Article II rule. Until the Court explains whether Cook is a Federal Reserve-specific exception or a broader historical qualification on presidential removal authority, the post-Humphrey’s doctrine will remain defined by competing theories of executive power rather than a settled rule.
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