The Court Let Trump Fire Anyone. The Senate Won't Let Him Hire. Here Is the Lawful Fix.
The 91-year old Humphrey's Executor was the case that enabled the Deep State. But how is the President supposed to use that ruling when the Senate won't confirm his nominees? Here's the playbook.
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NOTE: My friend Alexander Muse is one of the most prolific and thoughtful voices online, and well worth following on all platforms. Please read and share. — RDM
by Alexander Muse
July 20, 2026
Personnel power has two halves. One half is the power to remove an officer who will not carry out the President’s program. The other half is the power to install an officer who will.
On June 29, 2026, the Supreme Court settled the first half for good. In Trump v. Slaughter, by a vote of 6 to 3, the Court struck down the FTC’s for-cause removal protections, overruled the 91-year-old Humphrey’s Executor precedent, and confirmed that the President may fire any officer who wields executive power, for any reason or none.
The second half is where the fight now moves.
In 2024 I published an op-ed titled “The FVRA Playbook: Trump’s Legal Path to Installing Gaetz and Hegseth Over Senate Objections” This piece is an update to that one, because the law has since shifted beneath it in the President’s favor. What follows is the argument for the sequel: aggressive, lawful use of the FVRA and the recess appointment power to complete what the Court began.
Start with what Slaughter actually held. Chief Justice John Roberts, writing for the majority, was blunt about the 1935 precedent he was burying. “Humphrey’s framework, in short, has not withstood the test of time,” he wrote, and then, in the line that ends the era, “If anything more is left of Humphrey’s, we overrule it.” The operative principle is simple: subordinates who exercise the President’s power are subject to removal by him.
Roberts noted that the modern FTC enforces some 80 statutes touching nearly every corner of the economy, which demolishes the old fiction that the agency was merely quasi-judicial. The Court temporarily carved out the Federal Reserve in the companion case, Trump v. Cook, pending the completion of that litigation. Everything else within the President’s general administrative control, roughly two dozen multi-member agencies Congress had designed to be independent, is now his to command.
Do not take my word for the scale of the ruling. Take the dissent’s. Justice Sotomayor wrote that the decision “reshapes our Government” and shifts “tremendous power over broad swaths of American life into the President’s hands.” Strip away the alarm and what remains is a factual description of the mandate the President now holds. Erwin Chemerinsky, dean of Berkeley Law and the left’s most cited constitutional scholar, conceded that “agency independence is now gone.” When Chemerinsky says the war is over, the war is over. Justice Gorsuch, concurring, stated the sequel thesis in a single sentence: “The fourth branch’s powers still exist; they have just been reassigned to the President.”
That last line identifies the problem. Reassigned power is not the same as exercised power. Power needs hands, and hands means personnel. Ilya Shapiro of the Manhattan Institute put the underlying theory well: the buck should stop with the President, not with boards of unaccountable bureaucrats, and if the people dislike how an agency enforces the law, they should be able to blame and replace the man they elected.
This is not a Federalist Society invention. It is Hamilton’s design. “Energy in the executive is the leading character in the definition of good government,” he wrote in Federalist No. 70, and an executive starved of officers has no energy.
Now the second half comes into view. The Senate has weaponized the confirmation process to deny the President the officers the Constitution now says answer to him alone. The numbers come from the Brookings Institution, which is no friend of this administration. Trump sent 450 nominations to the Senate in the first 300 days of his second term, yet his nominees have faced the longest average confirmation delay of any president since Reagan, 145 days. That is more than 5.5 times the 26-day average under Reagan and more than double the 68-day average of Trump’s own first term.
In the first 200 days, only 7 nominees were confirmed without cloture being invoked, and every single nominee required a final recorded vote, an all-time high per Brookings scholar Chris Piper. This is not vetting. It is a filibuster of the executive branch itself.
The backlog compounds the delay. By mid-2025 the Senate faced a queue of 161 nominees, most of them lower-level positions that past Senates cleared by voice vote or unanimous consent. Of the more than 800 key roles tracked by the Partnership for Public Service, more than 270 have no nominee and about 100 have a nominee awaiting a vote, and across the last four administrations fewer than 50% of Senate-confirmed positions in major agencies were filled within the president’s first year. The Partnership’s own verdict: the system is badly broken and worsening with each president.
One arithmetic collision captures the absurdity. Brookings projects that if delays follow the historical pattern, the average confirmation delay will reach 237 days by the two-year mark. The FVRA’s basic window for acting service is 210 days. Read those numbers together: the Senate now takes longer to confirm an officer than the law allows an acting officer to serve. Even Brookings concedes the perverse incentive this creates. Why wait nearly 5 months on average when the law lets you seat someone today?
Which brings us to the tools, and it matters that neither of them is novel. The FVRA is not a loophole. It is Congress’s own statute, passed in 1998, for keeping the government running when confirmation stalls. Per the Congressional Research Service, three classes of people may serve as acting officers: the first assistant to the vacant office by default, or, at the President’s direction, a senior official of the agency, or any Senate-confirmed official from anywhere in the government.
The clock math favors a White House that plans. The 210-day window tolls while a first or second nomination is pending, and a rejected or withdrawn nomination starts a fresh clock. The Senate Republican Policy Committee’s own explainer confirms that an acting official can serve well over a year if a nomination is pending. That timeline is not a creative legal theory; it is the Republican conference’s own policy shop talking.
The courts have already blessed the core move. When CFPB Director Richard Cordray resigned in 2017 and tried to install his own deputy as acting director, President Trump named Mick Mulvaney under the FVRA instead. The deputy sued, and in English v. Trump the federal district court in DC held that the President could choose the FVRA route over the agency-specific statute. The Office of Legal Counsel agreed. That case is the strategy’s proof of concept.
The first term also taught the crucial lesson, through failure. The administration installed Ken Cuccinelli atop USCIS by creating a new “principal deputy” position after the vacancy arose, and Judge Randolph Moss ruled the appointment illegal because a first assistant must already be in the first-assistant office when the vacancy occurs. A judge reached the same conclusion in 2025 regarding Alina Habba’s U.S. Attorney appointment.
The lesson is not that the FVRA fails. The lesson is that sequencing wins: install the deputy first, create the vacancy second. Post-Slaughter, the President can lawfully create the vacancy at any moment of his choosing, by at-will removal. The Court did not merely remove a constitutional obstacle; it repaired the single procedural weakness in the first-term playbook. Cuccinelli was the beta test. Slaughter shipped the product.
Will an acting government actually function? We ran that experiment. Stanford law professor Anne Joseph O’Connell documented 30 acting secretaries in Trump’s first term, with acting officials serving a combined 2,736 days across 22 Cabinet-level jobs, more than 7 years. The government did not collapse. The President himself said in 2019 that he liked “acting” because it gave him flexibility, and the precedent has now been established, tested, and survived, so the panic that will greet the sequel is a panic about something that has already occurred without incident.
The second tool is two centuries older than the FVRA. A recess appointee serves until the end of the next Senate session, roughly a year or more. Consider who has used it boldly. In December 1903 Theodore Roosevelt treated the split-second between two Senate sessions as a recess and installed more than 160 officers, including one the Senate had been blocking, and the appointments stood. Dwight Eisenhower placed Earl Warren on the Supreme Court by recess appointment in 1953, and Warren presided as Chief Justice, deciding cases, for 5 months before the Senate confirmed him. Ike did it again with Brennan in 1956 and Stewart in 1958.
If recess appointments were legitimate for three lifetime seats on the highest court in the land, a 12-month stint running an executive agency will survive the fainting couch.
The obstacle to recess appointments is not the Democrats; it is us — the pro forma sessions that keep the Senate technically open are gavelled in by a Republican senator acting on Majority Leader Thune’s orders. Thune has admitted that an extended recess to allow appointments is “on the table,” and he can afford only 3 defections from his conference.
Senator Roger Marshall has said the quiet part plainly: “The Senate should immediately adjourn and let President Trump use recess appointments to enact the agenda 77 million Americans voted for.” Senator Tom Cotton framed the choice for the minority: easy way or hard way. And if the two chambers disagree on adjournment, Article II, Section 3 lets the President adjourn Congress himself, a never-used but textually explicit power. The votes exist if leadership wants them to exist.
Some will call all of this an assault on norms. Notice what the objection concedes. Nothing in the sequel strategy requires a single novel legal theory. The removal power is now constitutional bedrock. The FVRA is a statute Congress wrote. The recess power sits in the constitutional text and carries the fingerprints of Roosevelt and Eisenhower. Slaughter did the novel work; the rest is execution. The genuinely novel practice here is the Senate’s, a chamber demanding cloture on every nominee down to the most minor posts, something no Senate in American history did to any prior president.
Elections have to matter. In November 2024, 77 million Americans voted for a President and a program. The Court has now affirmed that the officers who carry out that program answer to him alone. A President who can constitutionally fire anyone but cannot practically hire anyone holds a hollow victory, and Hamilton would have recognized the condition instantly: an executive without energy, which is to say a government without accountability.
The second half of the personnel war is there for the taking, with the statute book open and the precedents lined up. All that remains is the will to use them.
— This essay first appeared at The Enterprise, which you should follow.
A tremendous and VERY informative piece by Alexander Muse! Thank you, Dr. Martin for bringing it to us!
really well written article