What the Most Important Separate Opinion of the October 2025 Term Means for Federal Health Agencies
On June 29, 2026, in a 6-3 decision, the U.S. Supreme Court in Trump v. Slaughter, 609 U.S. ___ (2026), did what Court watchers had anticipated since the certiorari grant: it held that the Federal Trade Commission’s (FTC’s) for-cause removal protection violates the separation of powers and overruled a 91-year-old precedent. (The Slaughter case arose from the firing, without cause, of two Democratic FTC commissioners.) Justice Neil Gorsuch concurred with the majority but used his solo opinion to explore the consequences of Slaughter—something the majority opinion avoided.
What You Need to Know
- Overruling Humphrey’s Executor: The majority opinion overturned Humphrey’s Executor v. United States, 295 U.S. 602 (1935), which had shielded independent agency heads exercising quasi-legislative and quasi-judicial functions from at-will presidential removal. The Court held that the framework of that historic decision “has not withstood the test of time.”
- The Concurrence’s Broader Claim: Justice Gorsuch’s concurrence argues that independent federal agencies held not just executive power, but also delegated legislative and judicial authority, all of which now answer solely to the president. The concurrence poses three questions about how Congress and the courts might respond.
- Health Care Entity Exposure: The concurrence also cautions that health care entities perceived as adverse to an administration’s health policy agenda could face synchronized action across multiple federal enforcement levers at once.
Slaughter’s Majority Opinion
Chief Justice John Roberts authored the majority opinion in Slaughter, and it is a sweeping vindication of the unitary executive theory, grounded in the Decision of 1789 (a determination by the First Congress that the president may remove executive officers without seeking the consent of the U.S. Senate). The opinion also has roots in Myers v. United States, 272 U.S. 52 (1926), and the trajectory of Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477, and Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. 197. While the decision in Slaughter was expressly reserved to the FTC and exempted certain entities like the Federal Reserve and non-Article III judges, the underlying reasoning in Slaughter suggests potential application to other multimember “independent” agencies, such as the Securities and Exchange Commission (SEC), the National Labor Relations Board (NLRB), the Federal Communications Commission (FCC), and their kin.
Arguably, however, the opinion that deserves the closest reading and that suggests where administrative law might go next is Justice Gorsuch’s solo concurrence. In roughly a dozen pages, Justice Gorsuch not only joined the majority in full, but he immediately trained his attention on what the majority studiously avoids: the consequences of Slaughter. For the reasons explained below, Justice Gorsuch’s concurrence is at once a victory lap, a warning label, and, most importantly, a litigation roadmap for lawyers who practice before executive agencies—especially those who practice in the intensely regulated world of federal health care programs.
Humphrey’s Executor, the Court concluded, “has for decades been a result in search of a rationale,” and “[n]o branch may rely on adverse possession to claim power that the Constitution vests elsewhere.”
The Gorsuch Concurrence in Brief: Three Questions the Majority Does Not Answer
Justice Gorsuch opens his concurrence by accepting everything the Court held in Slaughter: officers who exercise executive power in the president’s name answer to and therefore must be removable by him. But Justice Gorsuch goes further and argues that independent agencies were never repositories of executive power alone. Over the past 90 years, “Congress has also delegated to them vast legislative and judicial powers, effectively allowing these agencies to make laws and decide disputes under them.”[1] Now, in the aftermath of Slaughter, all of that power answers to one person: the president. Proceeding from this conclusion, the concurrence poses three questions that will likely frame the coming decade of separation-of-powers litigation: Would Congress have delegated so much power, including legislative and judicial power, to independent agencies had it known the President would come to control them? How will Congress respond now, if it realistically can, at all? And—the question on which everything turns—“what, if anything, will this Court do about it?”[2]
The Bargain Thesis and Warning Signs
The analytical heart of the concurrence is what might be called the “bargain thesis.” Gorsuch traces the administrative state to its Wilsonian intellectual origins: the early 20th-century conviction, advanced by Woodrow Wilson and James Landis, that the “simple tripartite form of government” was inadequate to modern problems and that governance should be entrusted to insulated technical experts wielding combined legislative, executive, and judicial authority.[3] Unsparing in his views about that vision’s premises, Justice Gorsuch argues the project’s central conceit, apolitical expertise, collapsed almost immediately. William Humphrey himself, Justice Gorsuch notes, owed his FTC seat less to technical mastery than to Republican party loyalty and his connections to powerful lumber interests in the Pacific Northwest that had an axe to grind due to an FTC investigation. But, as Justice Gorsuch noted, what politics gave Humphrey, it also took away: President Roosevelt fired Humphrey not for want of expertise but because an “adamantly conservative” commissioner was intolerable during “an important phase of the New Deal.”[4] In sum, the concurrence flags an alleged inherent hypocrisy in the Wilsonian administrative state: politics as a driving factor of who serves in administrative agencies rather than actual expertise or merit.
Thanks to the decision in Humphrey’s Executor, however, one pillar of the Wilsonian project survived and, according to Justice Gorsuch, potentially changed congressional incentives: removal protection. Before 1935, delegating broad power to an agency risked “merely increasing” the president’s own power, since he could remove agency heads and install ones who would do his bidding.[5] “But Humphrey’s changed the equation, making independent agencies more tempting repositories for delegated powers that the President could not access with quite such ease.”[6] Congress’s willingness to hand agencies open-ended mandates—the FTC’s power over “unfair or deceptive” practices (a standard the majority itself calls “startlingly abstract”), the SEC’s authority to ensure “fair and honest markets,” the FCC’s licensing power keyed to the “public convenience, interest, or necessity”—was purchased, at least in part, with the currency of independence.[7]
Categorizing the FTC’s removal protections as “essential,” Justice Gorsuch marshals Humphrey’s Executor itself, mid-century political scientists, Slaughter’s own brief, and even the Slaughter dissenters themselves for the proposition that many of these delegations might never have been enacted without the belief that appointees to these independent administrative agencies would be protected from at-will removal.
While Slaughter may void the independence of these agencies, it leaves intact the delegations granted to them by Congress. Channeling the unitary executive theory, Justice Gorsuch captures the resulting asymmetry in the concurrence’s most quotable passage: “Open-ended delegations of legislative power have not gone away; now they will just be exercised by agency officials who answer to the President. The power to write new regulatory crimes still exists, but now the pen ultimately rests in the President’s hand. The ability to judge disputes in-house remains, but now the house is white.”[8] The “fourth branch,” in other words, has not been abolished. “Its powers still exist; they have just been reassigned to the President.”[9] This introduces two warnings that should command the attention of any practitioner who represents regulated entities.
The coordination problem. “The whole of the President’s authority,” Gorsuch writes, “also may be greater than the sum of its parts.”[10] A business out of favor with the party controlling the White House might stave off an FCC investigation—but can it also survive a subsequent FTC rule declaring one of its longstanding trade practices unlawful, an in-house Occupational Safety and Health Administration adjudication, and a prosecution for a new crime the SEC announces? When every enforcement lever in the federal government can be pulled by a single hand, and pulled in synchronized fashion, the exposure of disfavored firms or individuals changes in kind, not merely in degree, and raises serious questions over whether the targets of such government action can withstand such attacks.[11] Justice Gorsuch’s examples are not hypothetical; indeed, the concurrence cites the FCC Chairman’s 2025 warning, amid a controversy over a late-night TV host’s on-air remarks, that there would be “additional work” ahead for the agency if broadcasters did not act—“we can do this the easy way or the hard way.”[12]
The concurrence also flags the sheer scale of what is now presidentially controlled criminal exposure, citing scholarship estimating that over 300,000 federal regulations may be enforced criminally,[13] and catalogs the tools presidents already use to consolidate agency control beyond removal itself, including Office of Information and Regulatory Affairs regulatory review, and the reclassification of “tens of thousands” of civil-service positions,[14] as policy-influencing roles in both executive and formerly independent agencies, roles now removable by the president under Slaughter’s apparent endorsement of the unitary executive theory.
The ratchet effect. For the concurrence, the intuitive answer to the above-described problem is legislative action: Congress, now aware that “independent agencies are not so independent after all,” could simply reclaim or narrow its delegations.[15] Justice Gorsuch warns that any President “keen on his own authority” will have a strong incentive to veto legislation reclaiming powers he now effectively controls.[16] “The consequence is a ratchet effect: Authorities Congress once delegated by a simple majority may now require a veto-proof supermajority to retrieve.”[17] In other words, the political economy of delegation has been permanently altered in a way that strongly disfavors Congress. Implied in the concurrence is the irony that this was by Congress’s own doing, a result of its willingness to cede power to so-called independent executive agencies.
The Invitation: Nondelegation, Major Questions, and Article III
This brings the Gorsuch concurrence to its third question. If Congress cannot realistically respond, then doing so will fall upon the Court, but how will that unfold?[18] The concurrence concedes, “this Court bears responsibility as well”[19] for the current predicament, having spent nearly a century validating open-ended delegations under the permissive intelligible principle formulation[20] and permitting agencies to adjudicate matters affecting private rights outside Article III courts.[21] Indeed, earlier in the concurrence, Justice Gorsuch flags the point expressly: the Court has “recently begun addressing” whether in-house adjudication schemes comply with “Article III’s assurance of an independent judge, the Seventh Amendment’s promise of a jury trial, and the Due Process Clause’s guarantee of a fair trial before a fair tribunal,” citing SEC v. Jarkesy, 603 U.S. 109, 123-26 (2024), and yet, citing Atlas Roofing Co., v. Occupational Safety and Health Review Comm’n, 430 U.S. 442, 447-50, 461 (1977), “certain of those schemes persist.”[22]
The concurrence’s closing is an explicit invitation to litigants, familiar to anyone who has followed Gorsuch’s separate writings in Gundy v. United States, 588 U.S. 128 (2019) (nondelegation), West Virginia v. EPA, 597 U.S. 697 (2022) (major questions), and Jarkesy: a reinvigorated nondelegation doctrine to police what Congress may hand off; the major questions doctrine (which Gorsuch has long described as a kindred safeguard against oblique transfers of legislative power) to cabin the broadest assertions of delegated authority; and the Constitution’s structural and individual-rights protections to constrain administrative adjudication.[23] What is new, however, is the bold sense of urgency conveyed in the concurrence. Before Slaughter, delegated power was dispersed among semi-insulated expert bodies. That is not the case in a post-Slaughter world. Allowing presidents to control “vast new reservoirs of legislative and judicial powers” risks precisely what James Madison warned of in Federalist No. 47: “the accumulation of all powers . . . in the same hands . . . whether hereditary, self appointed, or elective.”[24]
Stated another way, the concurrence’s proposed solution is to invite pressure on other standing precedents. Jarkesy has already begun constricting agency adjudication of private rights, and Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), eliminated Chevron deference. Justice Gorsuch’s concurrence stitches these threads into a single narrative: the Court gives power to the president with one hand and signals, with the other, that the scope of what any president may wield could be next on the docket if not addressed by Congress.
What Slaughter Means for the Health Care Regulatory State
Health care lawyers may be tempted to categorize Slaughter as interesting but inapplicable. That would be a mistake. While the Department of Health and Human Services (HHS) is an executive department whose secretary has always served at the president’s pleasure, giving Slaughter such short shrift misses the bigger picture for at least four reasons:
- The majority specifically referenced HHS. In rejecting Slaughter’s proposed “reasonableness” limiting principle, the Chief Justice warned that on that theory Congress could “commandeer” the Environmental Protection Agency (EPA), the Departments of Commerce and Education, “the Department of Health and Human Services,” and most, if not all, of the Department of Justice (DOJ) by insulating their leadership from removal.[25] The Court’s answer forecloses that path permanently; Congress cannot respond to concerns about politicized health administration by giving future Centers for Disease Control and Prevention directors, FDA commissioners, or Centers for Medicare & Medicaid Services (CMS) administrators statutory tenure protection. Whatever independence federal health agencies retain going forward will be a matter of norms and internal scientific process, not law. In an era when public health leadership turnover already tracks the political calendar, Slaughter constitutionalizes that dynamic.
- Health care’s most consequential “independent” regulator just lost its independence. The FTC is, functionally, one of the most important health care agencies in the federal government: hospital and health system merger enforcement, pharmaceutical pay-for-delay litigation, pharmacy benefit manager (PBM) investigations and interim staff reports, and the (now-enjoined) noncompete rule with its outsized effects on physician employment—a rule Gorsuch himself cited as an example of sweeping delegated power in action.[26] Each of those enforcement priorities is now subject to direct presidential control through the removal power itself. Health systems, payers, and life sciences companies should expect FTC health care enforcement to swing with administrations more sharply than it already does and should discount the durability of any commission-level policy that lacks the support of the current administration.
- Gorsuch’s roadmap runs straight through the Medicare and Medicaid statutes. If the next front is nondelegation and major questions litigation, few statutory schemes present richer targets than the Social Security Act. Consider the breadth of what Congress has handed the secretary: authority to cover items and services that are “reasonable and necessary”—language every bit as open-ended as the FTC’s “unfair or deceptive” standard the Court found “startlingly abstract”; the Innovation Center’s power under Section 1115A to waive vast swaths of Medicare and Medicaid law for demonstration models of essentially unlimited scale; Section 1115 and 1332 waiver authority that permits the executive to reshape state Medicaid programs and Affordable Care Act markets; and public health emergency powers that, as the pandemic demonstrated, can suspend and rewrite regulatory obligations across the health economy. Post-Loper Bright, agencies already litigate these authorities without deference on questions of statutory meaning. Post-Slaughter, expect challengers to add constitutional delegation arguments, particularly where CMS or HHS uses broad statutory language to effect economically significant policy (e.g., drug pricing mechanisms, mandatory payment models, or coverage restrictions) that Congress never squarely authorized. The major questions doctrine will do much of this work even if formal nondelegation doctrine never fully revives.
- Agency adjudication in health care is squarely in the crosshairs. The concurrence reprises a theme in Jarkesy while adding the Slaughter twist: after this decision, Article II adjudicators’ ultimate principal is the president. Office of Inspector General (OIG) civil monetary penalty and exclusion proceedings, Medicare provider enrollment revocations, the multi-tier Medicare claims appeal system running through administrative law judges and the Departmental Appeals Board, Provider Reimbursement Review Board reimbursement disputes, and the No Surprises Act’s independent dispute resolution process (with its statutory bar on judicial review of arbitration awards) all place enormously consequential determinations in non-Article III fora. Jarkesy has already spawned challenges to civil penalty regimes across agencies.[27] Slaughter sharpens the argument by removing any pretense that these tribunals are insulated from political direction. Providers and plans facing agency enforcement should be preserving structural constitutional objections now, and government-side counsel should expect to face them in nearly every significant administrative case.
There is one more practical implication worth naming, and it follows from the concurrence’s coordination warning. Health care entities are uniquely exposed to synchronized federal enforcement: the same organization could always simultaneously face DOJ False Claims Act litigation, OIG administrative sanctions, CMS payment suspension, FTC conduct scrutiny, and state agency action prompted by federal referral. Now, however, with all federal levers responding to a single political principle, the risk calculus for entities perceived as adverse to an administration’s health policy agenda on any issue, in any direction, changes materially. Compliance and government-relations strategies that treated federal agency enforcement as technocratic and administration-neutral need revisiting, and health care entities would be wise to begin taking stock of where they might stand relative to this White House’s policies and priorities.
The Carve-Outs and the Questions Left Open
Two reservations in the majority opinion bear noting, because Justice Gorsuch’s concurrence makes them look less like settled harbors and more like the next contested terrain. In Part III–B of the majority opinion, the Court expressly declined to address the Federal Reserve, suggesting it may follow the distinct historical tradition of the First and Second Banks of the United States (something explored in Trump v. Cook, No. 25A312, 609 U.S. ___ (2026)), and it reserved the constitutionality of tenure protections for the judges of non-Article III courts such as the Tax Court and the Court of Federal Claims.[28]
Notably, Justice Clarence Thomas declined to join that section, suggesting that at least one member of the majority would not preserve even these carve-outs. The Federal Reserve exception, already tested in the litigation over Governor Lisa Cook’s attempted removal, rests on a historical distinction the majority did not defend at length, and its durability is an open question. The issue of non-Article III courts matters to health lawyers more than it might appear: if the logic of Slaughter eventually reaches tenure-protected adjudicators, the independence of the administrative judges who decide Medicare appeals and exclusion cases is implicated too, opening a new line of attack for health care entities in these administrative proceedings.
Conclusion: A Concurrence Written for the Casebooks—and Complaint Drafters
Great concurrences tend to either cabin a holding or extend one. Justice Gorsuch’s Slaughter concurrence does something rarer: it accepts the holding completely and then argues that the holding’s own logic destabilizes the ground on which the administrative state stands, teeing up a potential tidal wave that could sweep away the administrative state as we know it. If executive power must be unified in the president, and the president now controls agencies wielding delegated legislative and judicial power, then either the Constitution tolerates precisely the accumulation of powers Madison called the very definition of tyranny, or the delegations themselves must be rethought. Justice Gorsuch plainly intends the latter, and he has told the bar, in as many words, where to file.
For administrative law generally, the concurrence confirms that Slaughter is not an ending but a hinge: the removal battles that occupied the last 15 years are over, and the delegation and adjudication battles begin now. For health care lawyers, whose clients live inside the broadest delegations and the busiest administrative tribunals in the federal government, the message is more pointed still. The statutes will not change—the ratchet sees to that. The doctrines will. The practitioners who understand both will be very busy in the years ahead.
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For additional information about the issues discussed in this Insight, please contact the attorney(s) listed on this page or the Epstein Becker Green Health Care and Life Sciences attorney who regularly handles your legal matters.
Staff Attorney Ann W. Parks contributed to the preparation of this Insight.
ENDNOTES
[1] Slaughter, 609 U.S. ___ (Gorsuch, J., concurring at 1).
[2] Id.
[3] Id. at 2.
[4] Id. at 5.
[5] Id. at 7.
[6] Id.
[7] Id. at 8-10.
[8] Id. at 11.
[9] Id. at 11-12.
[10] Id. at 11.
[11] Id.
[12] Id. at 9.
[13] Id.
[14] Id. at 12.
[15] Id. at 13.
[16] Learning Resources v. Trump, 607 U.S. 229, 270-271 (2026) (Gorsuch, J., concurring).
[17] Slaughter, 609 U.S. ___ (Gorsuch, J., concurring at 13).
[18] Id. at 1.
[19] Id. at 13.
[20] See Mistretta v. United States, 488 U.S. 361, 372 (1989).
[21] Slaughter, 609 U.S. ___ (Gorsuch, J., concurring at 9).
[22] Id.
[23] Id. at 14-15.
[24] Id. at 12.
[25] Id. at 35 (majority op.).
[26] Id. at 8.
[27] See, e.g., Ortega v. Office of the Comptroller of the Currency, 2025 WL 2588495 (5th Cir. Sept. 8, 2025) (OCC banking penalties).
[28] Slaughter, 609 U.S. ___ at 28 (majority op.).
