The Supreme Court Is Getting Presidential Power All Wrong

By Peter J. Wallison 

Friday, January 09, 2026 

The nation’s highest court is distorting the Framers’ intent on the power of the presidency. 

The Supreme Court heard arguments last month in a case called Trump v. Slaughter. Most of America didn’t tune in, but lawyers and constitutional specialists closely followed the case. They knew its outcome could change the relationship between the U.S. government and the American people and could set an incorrect — and dangerous — precedent for how the Court understands the power of the presidency. 

At issue in Trump v. Slaughter is whether the president would be able to gain control of the independent regulatory agencies — agencies like the Federal Trade Commission, the Securities and Exchange Commission, the Federal Reserve, and dozens of others. This might not seem important to many who have had little contact with these agencies, but as usual with legal issues, the principles established by the Supreme Court have far-reaching consequences for all of us. 

In 2020, the Court decided a case called Seila Law v. Consumer Financial Protection Bureau, which established that the president could remove and replace the director of the CFPB, a small independent agency headed by a single director who was appointed for a term of years. In the facts of the case, there was no allegation of the director’s wrongdoing, just the fact that President Donald Trump wanted to replace him with someone else. 

Because the agency had only one director, Seila Law did not establish a precedent for all the independent agencies, which usually have from five to seven bipartisan directors with staggered terms of office. Some of these agencies, like the FTC, have been in existence for more than 100 years, and others — like the Fed — are of vital importance to the future of the U.S. economy. 

That is the issue in Trump v. Slaughter. If the precedent established in Seila Law, a single and minor agency, can be applied to all the independent agencies, Trump, and all future presidents, will have immense power over the U.S. economy and the lives of the American people. 

The Supreme Court’s position seems to be driven by an idea — called the unitary executive theory — that has become popular with the current conservative Supreme Court majority. The first and most important case in which the Court adopted this idea was Seila Law, where the Court majority, led by Chief Justice John Roberts, signed on to this statement about the drafting of the Constitution: 

The Framers made the President the most democratic and politically accountable official in Government. Only the President (along with the Vice President) is elected by the entire Nation. And the President’s political accountability is enhanced by the solitary nature of the Executive Branch, which provides a “single object for the jealousy and watchfulness of the people.” 

This description of what occurred at the Constitutional Convention in 1787 is wrong and — as brief as it is — was essential to the idea that the president was made a powerful and all-important figure in the government at the time the Constitution was drafted. I am sorry to have to say this. Like all lawyers, I have immense respect for the Court as an institution and have always believed that what I have read in its opinions was well-researched fact. But this is not. 

There was no thought at the Constitutional Convention that the president might be “the most democratic and politically accountable official in Government.” The debate over the nature of the presidency took place throughout the entire three-and-a-half months of the Convention, largely because most of the delegates — recalling the problems they’d had with King George only a few years before — feared giving power to a single person. 

For the whole Convention, the debate was whether to have a single person as the president, or a group, or — if a single person — someone elected by Congress. There was no consideration — none — about the president ultimately being “democratic” or “politically accountable.” That was exactly what the delegates most feared. The Convention had already allotted to Congress most of the power they were willing to give to anyone, and they limited it to a list of specific powers in the Constitution’s Article I. The notion that these same delegates would — in Article II — give unlimited “democratic” or “politically accountable” power to a single person like a president is completely fanciful. 

Although it was agreed that a president was necessary to see that laws were executed and enforced, most of the delegates appeared to fear a single person elected by the people, whatever his powers. They were concerned about an “elected monarch,” as they should have been at that time and place. This would have been clear if anyone at the Supreme Court had bothered to look at the debate in the Constitutional Convention. 

Although the final decision, made in the last weeks of the Convention, was to have a single person as president, he was to be elected by an “electoral college” — a different organization than what we have today, but a compromise necessary to get the votes of the members of the Convention who feared a president elected directly by the people; their concern was that, with popular backing, he could become a dictator or elected monarch. 

The original Electoral College enacted by the Convention did not have any relationship to the popular vote, as it does now. The electors were well-known people in each state, who would send two names to the central government. The person with the most votes would become president and the runner up vice president. This system was changed in 1804 to require the Electoral College to follow the popular vote in each state, but still we have had 19 cases (including 2016 and 2024) where the president was elected by the Electoral College, but without a majority of the national popular vote. 

Because of the Supreme Court majority’s distorted description of the presidency in Seila Law, there is a danger that the truth will never be considered by the Court in Slaughter. If so, the outcome would be the same. 

The unitary executive theory seems to be exactly what the Constitutional Convention rejected in 1787.