The Unitary Executive and the Due Process State

Emily S. Bremer* and William N. Eskridge Jr.**

In Trump v. Slaughter, the Supreme Court will consider whether to over rule Humphrey’s Executor v. United States, a landmark case that affirmed Congress’s authority to limit the President’s ability to fire members of the Federal Trade Commission (FTC). Proponents argue that this is necessary to ensure unitary executive control over the significant policymaking functions of the FTC and other historically independent administrative agencies. But the legal principles reflected in Humphrey’s Executor are also the foundation upon which Congress has constructed what we call the “due process state,” i.e., the many impartial officers and institutions that the President requires to discharge his Article II duty to ensure the faithful execution of adjudicatory statutes. This Article argues that the unitary executive and the due process state can—and indeed must—coexist.

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© 2026 Emily S. Bremer & William N. Eskridge, Jr.. Individuals and nonprofit institutions may reproduce and distribute copies of this Essay in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review Reflection, and includes this provision in the copyright notice.

*Professor of Law, Notre Dame Law School.
**Alexander M. Bickel Professor of Public Law, Yale Law School. We appreciate the excellent research assistance of Sydney Allard (Yale, Class of 2026) and Navid Kiassat (Yale, Class of 2026).