The recent constitutional revolution at the Supreme Court is the result of a well-coordinated effort over many decades by the conservative legal movement, which has achieved the reversal of a number of high-profile precedents that it excoriated for more than half a century. After the Court’s 2025–2026 term, it’s fair to say that this revolution has reached the end of its beginning. In its first phase, the Court reversed Roe v. Wade in 2022, banned race-based affirmative action in higher education in 2023, and ended so-called Chevron deference to federal agencies’ interpretation of ambiguous legislation in 2024, allowing courts to reverse, for example, long-standing environmental regulations. This year the Court completed the gutting of the Voting Rights Act of 1965, permitting what had long been considered unlawful racial gerrymandering by deeming it constitutionally protected partisan gerrymandering. Then it empowered the president to fire executive branch officials, with the exception of the Federal Reserve Board of Governors, for any reason, no matter what laws Congress has made to protect the independence of federal agencies.
All these decisions were bad. All were both predictable and predicted.1 Constricting fundamental rights to liberty, equality, and dignity and empowering a unitary executive who supposedly maintains sole control over the executive branch were central components of the jurisprudence of the late Justice Antonin Scalia, which formed the core of the legal movement from which the current conservative justices all spring.2
The most recent development—the end of agency independence—does not, on the surface, appear to contradict principles held dear by generations of constitutional liberals. There are no social movements that defend or advocate for independent government agencies. Few observers, even among administrative law experts, will find themselves morally exercised by a change in how heads of multimember agencies can be fired.
In practice, however, this technical-sounding change in constitutional interpretation may be even more consequential for government in the United States than the others. The reason is that the Supreme Court has released the executive from the institutional constraints imposed by Congress while the most power-hungry president in US history, Donald Trump, is in the White House. I don’t mean that Trump is now the most powerful president in US history. That honor, dubious or otherwise, still belongs to Franklin Delano Roosevelt, who presided over both a vast expansion of the federal bureaucracy and the creation of the modern US military. I mean that Trump, more than all other presidents, aspires to personalized power unmediated by staff, institutions, norms, or rules and unchecked by independent agencies that Congress created or by Congress itself.
In January 2026 Brendan Carr, President Trump’s handpicked chair of the Federal Communications Commission, announced “competition concerns” regarding a bid by Netflix to acquire Warner Brothers Discovery, the conglomerate that, among other things, owns CNN, the news network that Trump has called “a disgrace,” and CBS, which he has sued. It is not the FCC, however, but the Federal Trade Commission and the Department of Justice that are tasked with reviewing the competitiveness consequences of mergers and acquisitions. Carr strongly hinted that the FCC would happily approve a rival bid made by Paramount Skydance, controlled by the Trump ally David Ellison, who since acquiring the parent company of CBS News in 2025 has openly sought to make its editorial policies more Trump-friendly. In April Paramount Skydance’s takeover offer was approved by Warner Brothers’ shareholders. In June the Department of Justice announced that it had no objection to the deal. Twelve state attorneys general sued to block it, then reached a settlement in which Paramount promised to create an “editorial independence board” to set editorial standards for CNN and CBS and resolve conflicts related to the standards. As of this writing, the deal is poised to go through.
Prior to the Trump presidency, it would have been bizarre to the point of unthinkability for the head of an independent agency to intervene so overtly on behalf of the president’s personal interests. But this was not Carr’s first foray into such matters. It was his direct threat to the licensing of ABC affiliates that led the network to take the talk show host Jimmy Kimmel off the air for some weeks in 2025.
What we are seeing is not just some isolated threat to the First Amendment. It is something much deeper: a transformation in the way political power flows through US governance unseen since the New Deal. Not only Trump but his successors, whether Republicans or Democrats, are going to be able to exercise personal authority over the vast apparatus of the federal government in a way that presidents never have before and that was supposed to be foreclosed by the constitutional design of the modern presidency.
Independent agencies were conceived in the late nineteenth century to deliver expert rational policymaking and independent judgment. In their place, we are getting personal rule by personal whim. A president who can fire anyone he hires—the fundamental principle of the unitary executive—is a president who can bend agencies to his will based on personal preference, favoritism, even overt self-enrichment. And because in 2024 the Supreme Court also insulated the president from any criminal consequences for official actions, and because impeachment is now moribund after its twin failures during Trump’s first term, there is nothing anyone can do about it.
The result would be utterly fascinating if it weren’t so horrifying: a historic movement toward caudillo-like presidential power. It is occurring not in a weak democracy like Italy, a former authoritarian state like Hungary, or even a democracy like India with a tradition of near-imperial prime ministerial control, but in the United States, the political scientists’ model of supposedly balanced government. This stands in sharp contrast with the classic Weberian observation that charismatic power gives way to bureaucratized, rationalized institutional power. What we are seeing is something like the opposite: the Supreme Court is actively enabling the transformation of our neo-Madisonian constitutional model of divided government into an elected presidential dictatorship.
Why is this happening? From the standpoint of judicial doctrine, the answer is originalism, the theory that the constitutional order that governs the United States today should be the one that prevailed in 1789 when the Constitution went into effect.
A constitution is meant to be the DNA of a functioning state. If a society undergoes changes and the state does not evolve to adapt to them, it will die—this is the metaphor of the living Constitution, coined by Justice Oliver Wendell Holmes. In 1920 he wrote (in a majority opinion, no less) that the words of the Constitution
called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation.
When Scalia said in a lecture in 2013 that the Constitution is “not a living document” but is “dead, dead, dead,” he thought he was being funny. To his credit, Scalia did have a wicked sense of humor. But the idea of dead constitutionalism is funny only if you don’t take it seriously. The moment you do, the humor dies, and so will the state if its constitutional design does not adapt to a changing world.
Because the Constitution of 1789 includes just three branches of government, originalists have long been perturbed by the existence of the independent administrative agencies created by Congress beginning in 1887 with the Interstate Commerce Commission. The purpose of the ICC, like essentially all the fifty-seven agencies that were affected by the Supreme Court’s recent ruling, was to deploy independent, nonpartisan professional expertise to manage a complex modern economy. The ICC’s mandate, for example, was to regulate railroads and extended over time to include interstate bus lines and early telecoms.
It was plain to Congress that this sort of economic regulation would fail to achieve its goals if it came under the personal control of the president, so it created the agency independence that has been maintained for the past 140 years. The president appoints members of the independent agencies. They must be confirmed by the Senate. Once they are, they serve for fixed terms. The president can fire them only for cause, traditionally understood to mean inefficiency, neglect of duty, or malfeasance. While they are in office, they may be subjected to political pressures, but they are largely protected from the vagaries of presidential policy preferences or personal pressure.
This system of balancing was designed to imitate the checks and balances among the legislative, executive, and judicial branches, none of which can do anything meaningful without the input of the others. To anyone who venerates the Madisonian constitutional design, independent agencies were an homage to the genius of mixed government, which adapted and adjusted and evolved during well over half of our history. To the originalists, however, they were an abomination: a “headless ‘fourth branch,’” as critics put it as early as 1937, that has now finally been eradicated.
It is not surprising that the need for independent agencies was not anticipated by the Founders. The Constitution of 1789 envisioned an executive with very little power by today’s standards and a Congress whose power was also far more restricted than it became in the twentieth century (to say nothing of a far weaker Supreme Court). The federal government was relatively weak not only because the United States was so much smaller geographically or because the states were the main sites of political participation. It was because before the Industrial Revolution there was no pressing reason to imagine that the federal government would have to regulate labor, the environment, or even interstate transportation. The original executive branch included just a handful of cabinet secretaries, none of whom commanded an administrative apparatus of any meaningful size. The main executive functions were collecting import duties and conducting foreign affairs, to the extent that that could be done without a substantial standing army or navy.
It was not until after the Civil War that the United States both expanded across the continent and began to industrialize in earnest. The modern administrative state is therefore a creature of an industrial economy operating at continental scale. The establishment of the ICC in 1887 marks as well as anything the moment at which the government of the United States grew up and started governing. The Constitution, in other words, was alive.
This is not the first time that a conservative Supreme Court has wanted to turn back the clock on modern government. As part of the same regulatory effort that gave rise to the administrative state, Congress, beginning in the late nineteenth century, enacted a raft of legislation governing wages, hours, and working conditions. The libertarian-conservative Supreme Court majority of the time ruled much of this legislation unconstitutional as beyond Congress’s power to regulate.
The low point was a child labor case, Hammer v. Dagenhart (1918). Congress had passed a law making it illegal to transport items in interstate commerce that had been manufactured by children under the age of fourteen, or by children between fourteen and sixteen who had been required to work more than eight hours a day, or to work at night, or to work in a mine. The conservative justices struck it down, 5–4, over a blistering dissent by Holmes. It was not until the New Deal and FDR’s threat to pack the Court that the conservative view was swept away—the infamous switch in time that saved nine.
In the 1990s a conservative Supreme Court, influenced by the first flushes of originalist ambition and dominated by Ronald Reagan and George H.W. Bush appointees, was tempted to reverse the expansive interpretation of Congress’s commerce power that had been accepted for more than half a century. By then the commerce power had become the constitutional basis for most federal law on most subjects. In 1995 the conservative majority struck down the Gun-Free School Zones Act on the grounds that it was beyond the power of Congress to bar guns in school, not because of the Second Amendment but because there was not a sufficient connection between school gun violence and interstate commerce. At the time I was in law school, and I can remember my professors’ shock at what looked like the opening salvo of an attempt to roll back modern governmental power.
But after a bit of reflection, the conservatives of that era, including such stalwarts as Chief Justice William Rehnquist, decided that they were unprepared to abandon the basic foundation on which modern federal regulatory power rested. They struck down just one more law, a provision of the Violence Against Women Act, for having exceeded the commerce power.3 In 2005 Scalia himself repudiated this in retrospect incomprehensible effort to dress twenty-first-century government in eighteenth-century garb. In a case challenging the power of Congress to regulate the growing of cannabis for personal use, he voted with the majority to uphold the law. He reasoned that, under the Necessary and Proper Clause of the Constitution, Congress could regulate intrastate activities in order to make the regulation of interstate commerce effective. The Supreme Court’s second assault on the constitutional structure of modern regulation had been averted.
Thwarted from demolishing the entire modern edifice of legislation, the originalists fell back on the supposedly narrower theory known as the unitary executive and turned their attention to using it to undermine the modern administrative state. In this, their third try, they have now succeeded. Independent agencies are no more, with the exception of the Federal Reserve, in a particularly embarrassing form of special pleading. Chief Justice John Roberts and Justice Brett Kavanaugh, joined by the Court’s three liberals, took the intellectually indefensible position that the Federal Reserve so closely resembles the First and Second Banks of the United States that it gets a special historical exemption from the powers of the unitary executive that apply to the rest of the government. Their true, highly defensible motivation, revealed by Kavanaugh in a concurrence, was that they did not want to take responsibility for breaking the financial system by destroying Fed independence. The other four conservatives, disinclined to judicial pragmatism in any form, dissented.
Then there is the timing. When Scalia and other jurisprudential conservatives of his generation criticized the power of the administrative state, they were imagining that what they saw as a state run by liberal elites would be supplanted by a Reagan-style executive who would limit government intervention in a roughly libertarian fashion. It never occurred to them that the alternative would be a populist, nakedly corrupt, twice-impeached aspiring dictator who would govern more with the apparent goal of self-aggrandizement than in adherence to any political philosophy.
The disaster being created by today’s conservative justices isn’t motivated by a liking for Trump’s personal style of governance. It’s driven by their blind adherence to the foolish dogma of originalism, regardless of real-world consequences. True, in his first term, Trump appointed three of the conservative justices necessary for the revolution to take place. But he thought he was appointing justices who would be loyal to him personally, and since they have not always ruled in his favor, he considers all three traitors.
What’s unforgivable is that these justices, who cannot be fired by Trump and who believe in the independence of the Supreme Court, appear to think that allowing Trump to fire anyone in the executive branch will not undermine the capacity of the agencies in that branch to govern effectively. The most generous thing you could say about the conservative majority’s decision to end agency independence is that they naively think it won’t have much practical effect. Even among reasonable administrative law experts trying to grasp the insanity of what has just happened, you can hear the hopeful argument that agency independence was never really all that important, given that presidents could ultimately appoint a majority of the members of the independent agencies and thus get their policy preferences carried out.
This view might conceivably have been true in the pre-Trump world, in which presidents expected the people they appointed to run agencies to act on the basis of sound, reasoned judgment rather than personal loyalty or the enrichment of the president and his friends. Yet the fact that Congress sustained the model of agency independence for so long suggests that professional politicians, at least, believe that there’s a difference between directly reporting to a president who can fire you and being appointed by a president who likes your policies but can’t fire you without cause.
Constitutional governance is an experiment, “as all life is an experiment,” Holmes once wrote, quoting Emerson without citation. The purpose of an experiment is to gather data and, on the basis of that experience (note the common root), to ascertain what works and what does not. Agency independence was a crucial part of a fairly successful experiment in modern government in the United States, if success is measured by the country’s wealth and power and the durability of its constitutional structure. Originalism is an experiment in denying experimentation—in perversely refusing the lessons of experience. We will know the consequences soon enough.
—September 24, 2026