WATCHING WASHINGTON, RAILWAY AGE JANUARY 2026 ISSUE: It’s called “unitary executive theory.” It asserts the Constitution’s Article II provides for one executive, the President, and others may not wield substantial executive power outside the elected President’s authority. It assigns to the POTUS the same broad Executive power over members of supposed independent agencies—such as the National Mediation Board (NMB), National Transportation Safety Board (NTSB) and Surface Transportation Board (STB)—as the POTUS has over Executive Branch Cabinet and sub-Cabinet officers.
If the theory is correct, the POTUS may lawfully fire members of multi-member, bi-partisan and supposed independent agencies whom the Senate confirmed for fixed terms, notwithstanding law limiting termination to inefficiency, neglect of duty or malfeasance in office (cause). Critics of unitary executive theory say it conflicts with 90 years of Supreme Court (SCOTUS) precedent and undermines the Constitution’s inherent checks and balances.
On Dec. 8, the SCOTUS heard arguments on whether the theory correctly interprets Article II. A decision is expected by summer. Railroads are invested in the outcome. If the SCOTUS recognizes the constitutionality of unitary executive theory, it recognizes a POTUS’s free rein to intimidate or fire NMB, NTSB and STB members not in policy lock-step. Supposed independent agencies could be stocked with stooges.
The case—relevant to the NMB, NTSB and STB—is Slaughter v. Trump. Rebecca Kelly Slaughter, a Federal Trade Commission (FTC) member, was fired by POTUS 47 despite being Senate-confirmed for a term ending in 2029. Lower courts cried foul and ordered her reinstated, but the SCOTUS granted a stay pending its decision.
Slaughter’s fate likely will decide that of a dozen other POTUS 47-fired Senate-confirmed agency members, among them NTSB’s Alvin Brown, NMB’s Deirdre E. Hamilton and STB’s Robert E. Primus. Primus has agreed to hold his case in abeyance until the federal District Court for the District of Columbia rules in the Brown case.
These firings of Democrats by Republican POTUS 47 are the stuff of unitary executive theory. Slaughter’s termination notice said tersely, “Your continued service on the FTC is inconsistent with my Administration’s priorities.”
Theory advocates say independent agencies are “a headless fourth branch of government” not provided for by the Constitution. Yet the Legislative Branch created them as expert guardians of legislative intent, with those guardians themselves guarded though legislative and judicial oversight.
Unaffected by this dispute are the Secretary of Transportation and Federal Railroad Administrator, as they are Article II Executive Branch officers reporting to, and serving at, the pleasure of the POTUS.
Separately, the SCOTUS will hear oral argument on the legality of POTUS 47’s firing of independent agency Federal Reserve Board member and Democrat Lisa Cook, whom—unlike Brown, Hamilton and Primus—the Court has allowed, pending decision, to remain in place, ruling “Fed” governors have greater job protection as the Fed is a quasi-private entity.
Unitary executive theory proponents targeting supposed independent agencies want the SCOTUS to reverse a 1935 decision, Humphrey’s Executor, named for a by-then-deceased FTC member, William E. Humphrey, ruled unlawfully fired by President Franklin D. Roosevelt for the same reason POTUS 47 fired Slaughter, Cook, Brown, Hamilton and Primus—for not being fellow travelers with Presidential priorities.
Republican Humphrey, said Democrat Roosevelt, was an impediment to New Deal policies. But the SCOTUS said permitting the removal from an agency with decision-making independence would subvert “congressional intent to create a body independent of executive authority [that] cannot in any proper sense be characterized as an arm or an eye of the Executive.”
Defenders of Humphrey’s Executor argue that certain agencies were created by Congress to be expert, bipartisan and largely independent of political authority. “Largely” is a crucial adjective beyond agency majorities matching the POTUS’s political party.
Although the NMB chair, by law, rotates annually among three Senate-confirmed members, statute permits the President to designate the STB and NTSB chairpersons (who control dockets) from among Senate-confirmed agency members. The President thus may demote a chairperson and designate another, while the Legislative Branch exerts political influence through budgets and amended law.
In official Washington, notions of independence can be fluid, with logic a mere suggestion.
National MedRailway Age Capitol Hill Contributing Editor Frank N. Wilner is author of “Railroads & Economic Regulation,” available from Simmons-Boardman Books, 800-228-9670.
