When Congress passed the Sherman Act in 1890, John Sherman told the Senate, “If we will not endure a king as a political power, we should not endure a king over the production, transportation, and sale of any of the necessaries of life.” The act intended to keep concentrated private power from becoming a sovereign authority unto itself. It lasted five years before the Supreme Court took it apart. In United States v. E.C. Knight (1895), the Court held that manufacturing was not commerce and therefore lay beyond the reach of federal antitrust law. The case concerned the American Sugar Refining Company, which by acquisition controlled more than 90 percent of the nation’s sugar refining capacity. The Court drew its commerce line precisely where the largest industrial concentration in the country sat, and the trust walked free.
The judicial track was not the only one to fail. The Sherman Act could also be enforced by the executive branch through Justice Department prosecution, and for brief periods it was. Theodore Roosevelt’s suit against the Northern Securities Company railroad combination, decided in 1904, showed that the statute had teeth when an administration chose to use it. But that was the problem. Antitrust enforcement under the executive ran on presidential will, which ran on presidential politics, which ran, in substantial part, on the financial support of the same concentrated interests the act was meant to discipline. Enforcement appeared and vanished in four-year cycles. The regulated held effective influence over the regulator, because the regulator stood for election and the regulated paid for campaigns.
The Federal Trade Commission tried to prevent any single actor, including the president, from achieving monopoly control over enforcement.
By the second decade of the 20th century, Congress had watched this pattern for 20 years, and the Pujo Committee documented its predictable result. The committee’s 1912 and 1913 investigation into what it called the Money Trust traced how a small group of New York financial houses, primarily J.P. Morgan, controlled the allocation of credit across the entire economy through interlocking directorates, voting trusts, and other affiliations between entities. Louis Brandeis turned the committee’s findings into argument in Other People’s Money (1914), showing that concentration in finance was not a series of separate abuses but a system.
What that system meant for antitrust was plain. The two instruments the country had for disciplining concentrated power had each been captured before effective enforcement could begin: the courts by the elite composition of the federal bench, the executive by the electoral dependence of the president on the industries he was supposed to regulate.
The Federal Trade Commission Act of 1914 was Congress’s answer, and that answer was structural. The usual way of describing the independent agency, then and now, emphasizes expertise: a specialized body, staffed by people who understand the industries they oversee, freed from the distractions of ordinary politics to regulate with competence. Expertise was part of the case, but it was not the heart. The heart was that enforcement that runs through the president runs through the official most exposed to capture by concentrated economic power, and Congress had two decades of evidence proving the point. The Justice Department already possessed antitrust authority. Congress built a second institution precisely because authority lodged in the executive alone had proven vulnerable to undermining by the regulated.
When Congress created the FTC, it left the Justice Department’s antitrust authority fully intact, with both bodies holding overlapping jurisdiction over the same conduct. The concurrent enforcement was by design. Two bodies competing for primacy as enforcers meant that neither could quietly stand enforcement down without ceding that ground to the other. The structure borrowed the logic it was built to defend: Just as competitive markets resist the private exercise of monopoly power, competing enforcement institutions resist the political exercise of enforcement monopoly. The anti-monopoly principle was being applied to the enforcers themselves, reaching beyond the industries they oversaw.
The design also moved enforcement to a body the president could not simply command. Commissioners served staggered seven-year terms, with no more than a bare majority from one party, and could only be removed for cause. The staggering meant that a newly elected president, however his campaign had been financed, could not install a fresh slate of commissioners willing to stand enforcement down. The for-cause protection meant that a commissioner who pursued a politically connected target, or who declined to spare one, could not be fired for the decision. Each feature was a specific countermeasure to a specific failure Congress had observed, and the failure was capture of the enforcement power by the interests it threatened.
Congress, in short, applied anti-monopoly logic to government itself. The Sherman Act tried to prevent any private interest from achieving monopoly control over a market. The Federal Trade Commission tried to prevent any single actor, including the president, from achieving monopoly control over enforcement. These are two sides of the same problem. Concentrated power over markets and concentrated power over the machinery that polices markets are equally dangerous to a self-governing people, and the remedy in both cases is the same: break the concentration up so that no single will can operate the whole at once. The independent commission is antitrust doctrine turned inward and applied to the state.
I am not saying this was innovative. The Constitution had done it first. Madison’s argument in Federalist No. 51 that ambition must be made to counteract ambition is the separation of powers principle restated as anti-monopoly design. Distribute power across three branches, divide the legislature in two, set the federal government against the states: Each move denies any single interest the capacity to capture the whole. The Sherman Act and the FTC extended that logic into a domain the constitutional structure had not equipped itself to address: concentrated power held through the corporate form, accumulating through markets. Congress was iterating on the framers’ design to meet a new challenge.
Congress made the same judgment repeatedly over the next several decades. The Federal Communications Commission in 1934, the Securities and Exchange Commission in 1934, and the National Labor Relations Board in 1935 each carried the same architecture of staggered terms, for-cause protection, and multimember structure, because each represented a domain where Congress concluded that enforcement was too exposed to capture to be left to a single political principal renewing itself every four years. The repetition was the same structural insight, reapplied wherever concentrated private power threatened to capture the institutions built to check it.
What the design protected is easier to see once the expertise rationale is set aside. For-cause protection severed the link between enforcement and faction. The commissioner who decided whom the agency investigated and whom it left alone could not lose her position for those choices, which meant the operative question for enforcement was what a party had done, not where it stood. The dispersal of enforcement across competing agencies added a second guard. Even if one enforcer was captured or pressured into inaction, the others kept running on their own authority. This is anti-monopoly in its purest form: enforcement power treated as a hazard in itself, with disaggregation the structural check against total capture.
Carl Schmitt held that the essence of sovereignty is the decision on the exception, the sovereign’s power to determine who stands inside the protection of the law and who stands outside it, who is friend and who is enemy. The independent agency structure was, in effect, a refusal to let that decision concentrate. By distributing enforcement authority across multiple bodies insulated from the president, Congress denied any single sovereign the capacity to make the friend-enemy determination operative across the whole machinery of regulation at once. The exception was broken into pieces and parceled out, which is another way of saying that the anti-monopoly impulse and the anti-sovereign impulse are the same. To prevent monopoly over enforcement is to prevent the concentration of exactly the power Schmitt called sovereign.
THIS WEEK’S HOLDING IN TRUMP V. SLAUGHTER dismantled this design when it overruled 91 years of precedent in Humphrey’s Executor and held that the president may remove the commissioners of the Federal Trade Commission at will. All executive power is now vested in the president. An official who exercises that power acts as his deputy, and a deputy the president cannot remove is no deputy at all. Every agency built on the FTC model is constructed the same way, and each now holds its enforcement powers at the president’s sufferance, except for one.
The carve-out in Trump v. Cook inverts the logic of Congress’s anti-monopoly design. The Federal Reserve sets interest rates and manages the money supply; of all the independent institutions, it is the one whose stability the holders of capital most require. The Court preserved that one. The agencies it opened to presidential control are all the ones that discipline private power rather than serve it: the commission that polices corporate deception, the commission that governs the securities markets, the board that protects workers who try to organize, and numerous others. Congress built the independent agency to keep concentrated economic power from capturing enforcement. The Court has now returned enforcement to the president while shielding the one institution that most directly serves concentrated economic power from the same fate. The line it drew runs precisely where Congress was trying to erase one.
The case Slaughter overrules is worth thinking through. Humphrey’s Executor reached the right structural result, but the unanimity of the decision conceals more than it reveals. Justice George Sutherland, a member of the “Four Horsemen,” as the conservative jurists of that time were called, wrote for a Court that included its liberal wing. He did so not because all nine were committed to structural independence as a principle, but because in 1935 the design happened to serve each faction’s immediate interests. The Four Horsemen were protecting a conservative Republican commissioner from an activist president systematically dismantling the old order; the liberals were enthused to overturn a different precedent, Myers, that gave presidents unilateral power to fire. What looked like a principled 9-0 endorsement of enforcement independence was, in substantial part, a convergence of opportunism.
What Slaughter restores is the condition the Federal Trade Commission was created to end. In 1914, Congress looked at a president whose path to office ran through the industries he would be expected to regulate, and it built an enforcement body that could function regardless of that dependence. In 2026, the Court looked at that enforcement body and handed it back. A president whose political operation is financed by the regulated industries now controls, directly and at will, the officials who decide which of those industries’ competitors and critics the enforcement agencies pursue. The capture that Congress spent 40 years building institutions to prevent has been reinstalled as the constitutional baseline, and the anti-monopoly design that prevented it has been declared a violation of the separation of powers.
The fight over the independent agencies has mostly been conducted in the vocabulary of administrative law, a contest over whether Congress had the authority to insulate these bodies and whether their insulation can be squared with Article II. This is the wrong frame. What Congress built, slowly and imperfectly across more than a century, was a structural answer to a problem older than the administrative state: the tendency of concentrated private power to capture whatever public mechanism is built to discipline it. In building it, Congress was iterating on the answer the Constitution’s framers had already provided. The answer in both cases was the same: break up the concentration of power and make sure no single will could capture the whole.
The Court’s record on this question is not ambiguous. It immunized the sugar trust in 1895. It protected a conservative commissioner in 1935 not out of structural principle but out of partisan alignment. In the years since, it has been dismantling enforcement independence piece by piece, eliminating protections for individual agency heads before moving to the multimember commissions Congress had designed as the more durable bulwark. It has now rationed what remains along class lines, preserving independence for the institution capital most requires and eliminating it for the institutions that discipline capital.
What runs through that history is not constitutional fidelity. It is a consistent institutional sympathy with concentrated economic power against the branches that tried to check it. Congress, watching that same alignment take shape a century ago, built institutions designed to function without the Court’s cooperation. The Court has now made that design unconstitutional, and deemed its result required by the Constitution, the same anti-monopoly document it has spent over two centuries undermining.
