Introduction
Ninety years ago, the Supreme Court unanimously held in Humphrey’s Executor that it was unlawful for President Franklin Delano Roosevelt to fire a Federal Trade Commissioner without cause. By now seeking to remove Federal Trade Commissioner Rebecca Kelly Slaughter without cause, President Trump has asked this Supreme Court to confront the exact same issue. Will the Court consider itself bound by stare decisis and long-settled congressional and executive practice? And given the reliance of Humphrey’s Executor on Framing-era history, and subsequent analysis of that history by originalist scholars, will the Court follow or depart from a commitment to originalism?
Congress created the Federal Trade Commission (FTC) in 1914 to prevent “unfair methods of competition in or affecting commerce.” See 15 U.S.C. §45. The FTC is made up of five Commissioners appointed by the president by and with the advice and consent of the Senate; no more than three of the Commissioners can be members of the same political party. Id. §41. Commissioners may be removed by the president “for inefficiency, neglect of duty, or malfeasance in office.” Id. §41.
Without reference to this “for-cause” standard for removal, President Trump informed Commissioner Slaughter by email in March 2025 that he was removing her from her position pursuant to the president’s Article II authority. The president’s message asserted that Commissioner Slaughter’s “continued service on the FTC is inconsistent with my Administration’s priorities.” Slaughter v. Trump, No. 25-909 at pg. 4-5. Commissioner Slaughter challenged the president’s action in court.
On July 17, 2025, the United States District Court for the District of Columbia granted Commissioner Slaughter both a declaration that the president’s actions had violated the law and an injunction preventing her removal. Id. pg. 32 and 41. The court found the president’s action “unlawful and without legal effect” because the president had not complied with the removal provisions of the FTC Act and because “[t]hose provisions remain constitutional, as they have for almost a century . . . ” Id. at pg. 31.
On Sept. 2, 2025, the United States Court of Appeals for the District of Columbia Circuit, by a two-to-three vote, denied the Administration’s motion for a stay pending appeal. The Court of Appeals found that the Administration had no likelihood of success on the merits, given the “controlling and directly on point Supreme Court” precedent of Humphrey’s Executor. Id. at pg. 2.
On Sept. 22, 2025, the Supreme Court, in a six–to-three ruling, stayed the July 17, 2025 decision of the District Court. Treating the Administration’s application for a stay as also a petition for a writ of certiorari before judgment, the Court granted the petition and directed the parties to brief the following questions, concerning constitutionality and remedy:
“(1) Whether the statutory removal protections for members of the Federal Trade Commission violate the separation of powers and, if so, whether Humphrey’s Executor v. United States, 295 U. S. 602 (1935), should be overruled.
(2) Whether a federal court may prevent a person’s removal from public office, either through relief at equity or at law.”
Briefs addressing these questions have now been filed by the parties and by 51 amici curiae: 16 in support of the Administration, 32 in support of Commissioner Slaughter, and 3 for neither party. Ahead of the Court’s oral argument on December 8, 2025, this “bench memorandum” provides a concise reader’s guide to the main arguments of the parties and the amici.
Donald J. Trump, President of the United States, et al.: Overview of Petitioners’ Arguments
The Petitioners in this case (hereinafter “the Administration”) urge the Supreme Court to reject the lower court’s holding that the president’s attempt to remove Commissioner Slaughter was unlawful and without legal effect.
• Separation of Powers: The Administration argues first that the FTC’s removal protections violate the separation of powers. The Vesting and Take Care Clauses of Article II of the Constitution, the Administration asserts, give the President “conclusive and preclusive” removal authority. As additional support for this proposition, the Administration cites the First Congress’s debate over the creation of a Department of Foreign Affairs — frequently referred to as “the Decision of 1789” — which the Administration claims demonstrates that the Constitution was intended to give the president sole and unlimited removal powers. The Administration also relies on Myers v. United States — a decision that predated Humphrey’s Executor — as authority for the proposition that the “power to control executive officers includes the power to remove them.” See Br. of Pet. at 9 and 16. The Court’s subsequent ruling in Humphrey’s Executor, the Administration argues, should not control here, for two reasons. First, the Administration argues that Humphrey’s Executor was wrong in 1935, but is even more so today, since the FTC of today has “executive” powers that exceed those before the Court then. Second, in any event, the Administration asserts that, “[i]f anything of Humphrey’s Executor is left,” Br. of Pet. 11, the decision should be overturned on the grounds that it was “‘egregiously wrong from the start,’” since it contradicts constitutional text, historical practice, and established removal precedent. In the modern era, the Administration further argues, the framework of Humphrey’s Executor is unworkable and inconsistent with democratic accountability.
• Judicial Power and Remedies: The Administration also argues that courts cannot prevent the removal or order the reinstatement of executive officers. It would violate Article II, the Administration asserts, for courts to enforce statutory removal limits by ordering the reinstatement of officers that the president has chosen to remove. Doing so, the Administration claims, would force a president to “entrust executive power” to an officer who he or she had determined ought not to be given executive authorities, raising separation of powers issues beyond those argued above. The Administration also looks to precedent, saying that in the past, those who challenged their firings have sought back pay, and only rarely reinstatement; the Administration acknowledges that a district court did enjoin the removal of members of the U.S. Commission on Civil Rights in 1983, but treats that case as distinguishable, asserting that the court made that ruling because the Commission functioned as a legislative agency. Furthermore, the Administration asserts that equity has long barred courts from enjoining executive removals (or issuing declaratory judgments or utilizing mandamus to prevent the removal of executive officers), and that while the Civil Service Reform Act (CSRA) contemplates reinstatement in some circumstances, CSRA allows action only through the Merit Systems Protection Board, not district courts. In any case, the Administration argues, these judicial remedies are not available to presidential appointees like an FTC Commissioner.
Commissioner Rebecca Kelly Slaughter, et al.: Overview of Respondents’ Arguments
The Respondents (hereinafter “the Commissioner”) urge the Supreme Court to uphold the District Court’s finding that the removal was unlawful and without legal effect.
• Separation of Powers: First, the Commissioner argues that the FTC removal protections are inherently constitutional and consistent with historical practice with respect to all three branches of government. From the Founding-era, the Commissioner asserts, Congress has created multimember commissions – like the Sinking Fund Commission, the Revolutionary War Debt Commission, the Federal Reserve, and dozens more – whose members were not removable at will. The Commissioner also argues that presidents have continued to staff such bodies since the Founding-era in a way that reflects an unbroken political-branch acceptance of removal protections. The Supreme Court itself has also upheld removal protection structures, the Commissioner emphasizes, in settled case law that includes Humphrey’s Executor, Free Enterprise Fund, and Seila Law, which together establish that Congress may protect traditional multimember commissions by requiring for-cause removal without violating the separation of powers. The Commissioner further argues that the Constitution contains no textual basis to support an unchecked removal power across all areas of governance. Finally, stare decisis heavily favors retaining Humphrey’s Executor, the Commissioner claims, since overruling that case would destabilize nine decades of settled precedent (and the structuring of dozens of administrative agencies on its basis), and Congress and the president can address any problems with the FTC by exercising their various authorities to modify the agency’s structure or authorities.
• Judicial Power and Remedies: Second, the Commissioner argues that courts have the power to reinstate officials following improper removal, as shown by history and precedent. According to the Commissioner, reinstatement of officials — by way of mandamus, injunctions, and declaratory judgements — has been a remedy relied on since the Founding-era, and even beforehand in English and colonial cases. No federal statute, the Commissioner asserts —including the CSRA — has eliminated the right to such a remedy for officers like Commissioner Slaughter.
Arguments of Amici
Sixteen groups of amici –– including public-interest law firms, law professors, a Republican Senator, the Chamber of Commerce, two former Attorneys General, and nonprofit organizations –– filed briefs in support of the Administration. Thirty-two groups of amici — including former high-ranking Republican officials, bipartisan former chairs of several multimember agencies, law professors and historians, nonprofit groups, current and former members of Congress, twenty-three states, and retired federal judges –– support the Commissioner. Three amicus briefs were filed in support of neither party.
Not surprisingly, the arguments of the amici track in significant part those made by the parties. The themes that receive more extended attention from the amici are addressed below.
• Original Meaning and Intent
○ Arguments of Amici Supporting the Administration:
• A number of amici in favor of the Administration argue that historical evidence establishes that the Constitution’s Framers intended that the president have unlimited authority to remove executive officials.
• Following the Administration’s line of argumentation, these amici point to the Decision of 1789 as having largely settled the constitutional question in favor of executive removal power. Professor Ilan Wurman contends that the Framers and subsequent generations “all generally accepted, especially after the debates of 1789, that the President had a constitutional right to remove.” Former Attorneys General Meese and Mukasey offer agreement with this proposition. Amici further argue that the Necessary and Proper Clause does not authorize Congress to condition this power. Amici Meese and Mukasey also point to further history beyond the Decision of 1789: they cite removals of executive officers by the Washington, Adams, and Jefferson presidencies, while amicus Wurman looks to letters written by Thomas Jefferson in the 1770s and 1780s.
• Amicus Landmark Legal Foundation states that the Federalist Papers and ratification debates likewise show that the Constitution was intended to create a unitary executive with full removal power. But amicus Landmark also argues that it was the Decision of 1789 that resolved these debates in the president’s favor.
• Senator Schmitt, Christian Employers Alliance, and Landmark Legal Foundation contend that the Framers understood the presidential removal power as necessary to guarantee democratic accountability. They argue that the president’s broad authority to remove executive officers ensured that officers would remain answerable to the public through their representative, the president. Going further, amicus Pacific Legal Foundation argues that at-will removals were part of the original constitutional design and crucial to the separation of powers, as they were intended to serve as an executive check on Congress.
○ Arguments of Amici Supporting the Commissioner:
• In contrast, a number of amici supporting the Commissioner argue that the Decision of 1789 was not decisive with regard to the issue presented here. They further assert that Founding-era history demonstrates an understanding that limitations could be placed on the president’s removal of officials.
• Professor Shugerman contends that the Decision of 1789 did not decide the constitutionality of statutory removal protections. Surveying the Congressional debates, he finds that “[t]he supporters of a presidential removal power did not have the votes . . . for their interpretation, and they needed to retreat to strategic ambiguity in order to enact even . . . indirect and indecisive language.” at pg. 11. He asserts that removal is at most an implied power, and that the Framers explicitly rejected the adoption of the earlier English prerogative of removal. Id. at pg. 23-25. Finally, Professor Shugerman references several removal protections enacted by the First Congress — including the Revolutionary War Debt Commission, Justices of the Peace (see Marbury v. Madison), and the Sinking Fund Commission, as well as other removal protections contemplated by the First Congress — as additional evidence as an originalist matter, that the executive removal power was never understood as absolute. Id. at pg. 15-21. Rather than assessing removal protections as an Article II limit on Congress’s authority to structure executive offices, Professor Shugerman suggests that such protections should be judged as lawful legislative exercises of the Necessary and Proper Clause of Article I.
• Administrative Agencies
○ Arguments of Amici Supporting the Administration:
• Amici Washington Legal Foundation and Americans for Prosperity Foundation argue that the removal protections found lawful by Humphrey’s Executor have enabled an unaccountable administrative State that is inconsistent with Article II and the separation of powers.
• Likewise, amicus America’s Future (et al) contends that there has been a transfer of political power from the people to a technocratic administrative State through decisions like Humphrey’s Executor, and that this has diminished the power of the people and the president, ultimately leading to a nonresponsive government that entails a loss of liberty.
• Along the same lines, amicus Pacific Legal Foundation contends that promises of administrative efficiency have not been fulfilled, and have come at the price of liberty, while amicus Cato Institute argues that the expansion of the power of unelected government officials implicates the preservation of liberty.
○ Arguments of Amici Supporting the Commissioner:
• In contrast, the amicus brief filed on behalf of former Senior Republican officials by some of the authors of this article notes that administrative agencies already had a long history in the United States well before Humphrey’s Executor. Far from such agencies being unaccountable, their design makes them answerable both to the president, who can remove members for cause, and to Congress, which can change their make-up — as indeed Congress has in the past, including by giving more power to the president over the FTC and by temporarily eliminating removal protections from the Federal Reserve in the 1930s. Amici assert that the current president’s efforts to assert more executive authority over removal thus undermines congressional authority and unbalances the separation of powers. As amici put it, “overturning Humphrey’s Executor would violate the separation of powers by vastly expanding executive power at Congress’s and the Court’s expense.” Amici further note that the president exercises even more power over the FTC’s activities today than he did at the time of Humphrey’s Executor, so additionally granting him an unlimited power to remove FTC commissioners would further disrupt the separation of powers.
• Amici Former Chairs of the Federal Trade Commission and 207 Members of Congress also emphasize the substantial control that the president maintains over commissions like the FTC. They further highlight, as do amici Open Markets Institute and 19 States, that the FTC was intentionally designed as a bipartisan, multimember body to ensure stability, independence, and deliberative decision-making.
• In particular, amicus American Antitrust Institute argues, Congress’s creation of the FTC reflected the congressional view that the prior antitrust enforcement regime under the Sherman Act was insufficient.
• Amicus 40 National, State, and Local Consumer, Privacy, and Open Markets Groups argue that agencies that lack this independence — such as the FAA, DOT, FSIS (Food Safety and Inspection Service), and USDA — “have too often succumbed to industry domination, leading to regulatory failures that cost lives and erode public trust.”
• Amici Administrative and Constitutional Law Professors argue that the proper legal framework for evaluating removal protections is the balancing test from Nixon v. GSA and Morrison v. Olson, which holds a statute valid unless it substantially impairs the president’s ability to carry out constitutionally assigned functions. Under these tests, the president and the unitary executive theory do not overcome the “balanced, stable, and nonpartisan approach” by Congress in providing for-cause removal restrictions.
• Ramifications of Overturning Humphrey’s Executor
○ Amici Supporting the Administration:
• Amicus Christian Employer’s Alliance argues that there are no reliance interests to justify the preservation of Humphrey’s Executor, which amicus argues is unworkable because it relies on conceptually incoherent categories of “quasi-judicial” and “quasi-legislative” functions.
• Amicus Americans for Prosperity Foundation likewise argues that invalidating removal protections here would not require the destruction of other agencies or injure third parties’ reliance on agency work. In particular, amicus argues that overturning Humphrey’s Executor would not affect the Federal Reserve, which is “sui generis.”
• Amicus Chamber of Commerce urges the Court to explicitly distinguish the Federal Reserve from the FTC, suggesting that the Sinking Fund Commission provides a basis for such a distinction and that the FTC wields executive authority, while the Federal Reserve does not.
○ Amici Supporting the Commissioner or Neither Party:
• In contrast, amici legal historians Rosenbaum and Donahue argue that history has shown the workability of Humphrey’s Executor. And amicus Public Knowledge states that overruling that precedent would destabilize institutions on which both government and regulated industries have relied for generations.
• In particular, amici Professors Bednar and Phillips argue that statutory quorum requirements demonstrate congressional reliance on Humphrey’s Executor, as do amendments to the Vacancies Act that exempt independent commissions from its coverage. If the executive were able to remove independent commissioners at will, it could use the quorum and vacancy rules to disable the commissions entirely, contrary to the Take Care Clause and the will of Congress. Indeed, amici assert President Trump already has done exactly this with respect to, inter alia, the NLRB, MSPB, EEOC, USIP (U.S. Institute of Peace), TVA (Tennessee Valley Authority), U.S. African Development Foundation, and the Inter-American Foundation.
• Amicus National Whistleblower Center contends that, in light of the consequences of unchecked executive removal power on whistleblowers and the public right to transparency and accountability, overturning Humphrey’s Executor would contravene Madison’s vision of an executive removal power that reflects the “will of the community” as guided by “the benignant ray of truth.”
• The Federal Reserve: Moreover, some amici argue, the removal provisions governing the Federal Reserve and the FTC must rise or fall together. Amici former Senior Republican Officials, in a brief filed by some of the authors of this piece, note the intertwined history of the FTC and the Federal Reserve, which were created as complementary agencies to fulfill President Wilson’s “New Freedom” agenda — the Federal Reserve to regulate banks, and the FTC to regulate commerce. It therefore makes little sense to treat the constitutionality of their removal positions differently, according to these amici. They further emphasize that Humphrey’s Executor itself noted — as the then-Solicitor General implicitly acknowledged — that if the government’s position prevailed, removal protections would be unconstitutional for all offices except Article III judges.
• Nor, argues amicus Professor Shugerman, can the First and Second Banks be cited as a basis for an exception for the Federal Reserve, since they were private entities that did not exercise executive regulatory power. Thus, Professor Shugerman asserts, either the Federal Reserve removal protections are unconstitutional, or both the Federal Reserve and the FTC have a constitutional right to certain removal protections.
• Alternative Outcomes: Amicus Professor Morley, in a brief filed in support of neither party, urges that, if Humphrey’s Executor is overturned, the Court should avoid doing so in a manner that dramatically expands presidential power. He argues that Congress likely would not have delegated the same level of authority to non-independent agencies. Instead, the Court should consider ruling prospectively, enjoining certain executive functions of agencies rather than stripping their removal protections. The Court could also stay its ruling to allow Congress time to restructure agencies accordingly.
• Likewise, amici Professors of Administrative Law argue that limiting the executive powers granted to the FTC is preferable to eliminating removal its protections, given the importance of FTC independence. Removal protections for Article I tribunals, including independent commissions and other Article I courts are vital safeguards of those tribunals’ integrity.
• Severability: In a variant of this argument, amici Former EEOC Members contend for a narrow severing of only those applications of the FTC Act that are unconstitutional. Amici also suggest –– as an alternative –– invalidating removal protections as applied to only three commissioners (presumptively, the three who are members of the President’s own political party), rather than the entire Commission. Such a practice of mixed protected and unprotected officials reflects Founding-era practices, they claim.
• Other Agencies: Reflecting the wide range of concerns about the effects of overturning Humphrey’s Executor, numerous other amici argue that if that case is overruled, the Court should make clear that other agencies are not implicated. Amici Campaign Legal Center and Trevor Potter ask the Court not to rule in a way that would have implication for the FEC and EAC (U.S. Election Assistance Commission). Amici Administrative and Constitutional Law Professors argue that the Court should make explicit that any ruling concerning FTC removal protections does not extend to other multimember agencies or Article I courts (e.g. MSPB, FCC, NTSB (National Transportation Safety Board), NRC, FEC, and financial regulators), on the ground that the distinct functions and histories of these agencies support their for-cause removal regimes. Amicus Gwynn Wilcox argues that the Court should not extend its holding to the National Labor Relations Board or other agencies that have unique features affecting the constitutionality of removal protections for their heads. Bipartisan Former Commissioners of the Federal Energy Regulatory Commission (FERC) ask the Court to consider the special historical status of ratemaking commissions like the FERC. Amici American Federation of Labor and others seek to distinguish the NLRB, FLRA, and NMB (National Mediation Board) as federal labor agencies that wield no enforcement powers. Amicus Cathy Harris, in a brief in support of neither party, argues that the Merit Systems Protection Board and other legislative courts are purely adjudicatory bodies, and thus should survive, even if Humphrey’s Executor is overruled. Amici Todd Harper and Tanya Otsuka argue that the Court should engage in a functional and historical analysis specific to each particular agency.
• Judicial Power and Remedies
○ Amici Supporting the Administration:
• Amicus Christian Employer’s Alliance argues that the Commissioner had no cognizable equitable causes of action, and accordingly that the lower courts erred by reinstating her, since money damages would have been adequate. Amicus argues the courts cannot force specific performance of employment contracts or compel the President to confer his executive power on the Commissioner.
• Amicus America’s Future (et al) argues that the lower courts did not have the authority to reinstate Commissioner Slaughter either directly or indirectly.
• Amicus Professor Morley, in a brief filed in support of neither party, argues that if Humphrey’s Executor is not overruled, the Court should allow wrongfully removed officials to seek reinstatement through a writ of mandamus or quo warranto, rather than an injunction.
• Amicus Public Citizen cites longstanding authority allowing courts to bar subordinate executive officials from implementing an unlawful removal, without the courts directing the president himself.
• Amicus Maud Maron, in a brief filed in support of neither party, argues that Federal courts possess the authority to prevent removal from state and federal public offices under Section 1983 and the All Writs Act when the act of removal violates a federal right.
In sum, this case will turn on how far the Court considers itself bound by “long-settled and established” congressional and executive practice, which this Court has previously stated “‘is a consideration of great weight in a proper interpretation of constitutional provisions’ regulating the relationship between Congress and the President.” Given the reliance of Humphrey’s Executor on Framing-era history, and more recent understandings of that history unearthed by originalist scholars, this case will also test the Court’s commitment to originalism. Finally, as amici former Republican officials note, the case will test the depth of the Court’s commitment to stare decisis and judicial minimalism; amici call the Administration’s position “a profoundly anti-Burkean and anti-Madisonian step: [to] radically restructure a system by eroding constitutional checks and balances and concentrating all power—including economic power—in the President’s hands. Accepting this invitation would overrule a long line of precedents, violate separation of powers, and deal an enormous blow to the stability and freedom of our Nation.”
