Highlights
- The U.S. Supreme Court on Sept. 22, 2025, issued an order in Trump v. Slaughter, staying a lower court's order to reinstate Federal Trade Commission (FTC) Commissioner Rebecca Slaughter over President Donald Trump's decision to remove her without cause.
- The Court also directed that the case be heard on the merits in December 2025.
- This Holland & Knight alert takes a look at some of the potential implications if the Court overturns or narrows the 1935 Supreme Court precedent in Humphrey's Executor, which held that presidents cannot remove FTC commissioners without "cause" such as inefficiency, neglect of duty or malfeasance.
The U.S. Supreme Court on Sept. 22, 2025, issued an order in Trump v. Slaughter, staying a lower court's order to reinstate Federal Trade Commission (FTC) Commissioner Rebecca Slaughter over President Donald Trump's decision to remove her without cause. The Court also directed that the case be heard on the merits in December 2025. The Court issued similar orders earlier in May 2025 and July 2025, staying reinstatements of members of the National Labor Relations Board (NLRB), Merit Systems Protection Board (MSPB) and Consumer Product Safety Commission (CPSC).
Discussion of the Supreme Court's Decision
President Trump removed Slaughter, as well as Commissioner Alvaro Bedoya, in March 2025. Slaughter sued to challenge the action, citing a 1935 Supreme Court precedent (Humphrey's Executor v. United States), which held that presidents cannot remove FTC commissioners except for the reasons specified by U.S. Congress: inefficiency, neglect of duty or malfeasance. President Trump did not cite any of these reasons, only policy differences.
A federal judge ordered Slaughter's reinstatement. An appeals court denied the government's motion to stay the decision.
The government made an emergency request to the Supreme Court to temporarily stay the district court's order. The administration argued that the FTC in the days of Humphrey's Executor is far different from the FTC today.
By a 6-3 vote, the Court granted the stay, allowing President Trump's removal of Slaughter to stand while the justices consider the broader legal questions in the case.
Procedurally, the Court treated the application as a request to hear the case on the merits and granted that request. The Court will review whether the FTC's removal protections violate the constitutional separation of powers and Humphrey's Executorshould be overruled. The case will be scheduled for oral argument in December 2025.
Justice Elena Kagan authored a dissenting opinion, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson. In her dissent, Kagan cited to 15 U.S.C. § 41, which bars the president from discharging FTC commissioners except for "inefficiency, neglect of duty, or malfeasance in office," and she noted that the FTC is a "classic independent agency" with "multi-member, bipartisan commission ... whose members serve staggered terms and cannot be removed except for good reason."
Brief Background on the FTC's History
The FTC Act of 1914 was enacted in response to growing public concern about monopolies, trusts and unfair methods of competition during the Progressive Era. Congress sought to create an expert, independent body that could address complex economic practices in ways the courts could not easily manage. The FTC Act established the FTC with two primary goals: 1) to protect competition by prohibiting "unfair methods of competition" and 2) to safeguard consumers by later expanding authority to cover "unfair or deceptive acts or practices."
The agency was envisioned as a preventive regulator, empowered to investigate, study and stop harmful practices before they solidified into entrenched monopolies. Congress deliberately designed the FTC as an independent commission rather than a single-headed executive agency. Its features include:
- five commissioners appointed by the president and confirmed by the U.S. Senate
- bipartisan composition, with no more than three commissioners belonging to the same political party to ensure a balance of perspectives
- staggered, fixed terms of seven years, staggered so that one seat expires each year, insulating the agency from short-term political shifts
This structure was intended to foster apolitical, expert decision-making, modeled on a quasi-judicial, quasi-legislative body that combined economic expertise with legal authority. The legislative history shows Congress sought to create an independent "referee" in the economy. President Woodrow Wilson, who signed the FTC Act into law, argued that monopolistic power should not be policed solely through the courts but also through a specialized, dispassionate commission capable of continuous oversight.
Humphrey's Executor
In 1935, the Supreme Court decided Humphrey's Executor
v. United States, a landmark case that has guided this aspect
of constitutional law for nearly a century. The case arose when
President Franklin Roosevelt removed FTC Commissioner William
Humphrey for political and policy disagreements. Humphrey resisted,
pointing to the FTC Act's requirement that commissioners could
be removed only for cause. After Humphrey's death, his estate
sued for back pay.
The Supreme Court unanimously ruled in favor of Humphrey's
estate. It held that Congress had the authority to limit
presidential removal power for independent regulatory commissions.
The Court distinguished the FTC from purely executive agencies,
describing it as performing quasi-legislative and quasi-judicial
functions. As such, the Court concluded, Congress could validly
restrict the president's removal authority to protect the
agency's independence.
The Court emphasized that the FTC was "neither political nor
executive, but predominantly quasi-judicial and
quasi-legislative." This reasoning entrenched the notion that
independent commissions could be insulated from direct presidential
control.
Impact of the Court's Decision
The immediate effect of the Supreme Court's order is that Slaughter remains removed, pending a decision after a full hearing in December 2025. There is no guarantee that the Court's decision will keep Slaughter removed. In its earlier Wilcox stay decision, one of the Court's reasons for permitting temporary removal was simply "to avoid the disruptive effect of the repeated removal and reinstatement of officers during the pendency of this litigation."
If the Court overturns or narrows Humphrey's Executor, the implications will be profound.
- More Presidential Control Over Independent Agencies. Agencies such as the FTC, NLRB, CPSC, MSPB and Federal Communications Commission (FCC) could see their commissioners or leadership more vulnerable to removal for political or policy disagreements rather than misconduct. The president might have broader power to shape these agencies' policies by choosing to remove and replace nonaligned officials.
- Reduced Institutional Independence. The role of independent regulatory bodies is often to counterbalance political influence, bring technical expertise and enforce laws consistently. Weakening removal protections could reduce that insulation, increasing the risk of politicization. Critics warn that independent agencies might become more beholden to whomever is the sitting president.
- Greater Political Responsiveness and Accountability. The other side of a stronger removal power is a more politically responsive and accountable set of independent agencies. Advocates argue that these agencies should reflect the policies and priorities of the American people, as shown through their presidential choice rather than aims of their own or that are antithetical to their elected chief executive.
- Changed Dynamics in Litigation/Regulation. If removal protections are weakened, there may be more litigation over whether a removal was "for cause," what counts as "cause" and what statutory protections remain.
- Precedent Shift. Overturning or further narrowing Humphrey's Executor would continue the shift in legal and political understanding of the balance between Congress, independent agencies and the president. It might also affect separation-of-powers jurisprudence more broadly.
Key Questions to Consider
- What counts as "executive power" or "quasi-legislative/quasi-judicial" power? If the Court removes, redefines or shrinks the category of agencies that Humphrey's Executor protects, many agencies' leadership structure and traditions will be reevaluated.
- Are other presidential removal or selection criteria constitutionally valid? For instance, courts may be asked to consider the constitutionality of partisan-balance requirements.
- If the Court agrees that the president can remove FTC commissioners, how broad will its grounds be? It will be important to see if the Supreme Court relies on features unique to the FTC, facts of its operations today compared to the time of Humphrey's Executor or a more generally applicable constitutional interpretation. Those contours will help decide whether the Court's forthcoming decision applies only to the FTC or other agencies such as financial and labor regulators.
- Can Congress craft removal protections (if allowed) in ways that preserve some independence while respecting presidential removal power?
Conclusion
The interim decision to let Slaughter's removal stand while the case proceeds signals the Court's consideration of a potential major shift in the separation-of-powers structure of U.S. regulatory governance. If Humphrey's Executor is overturned or sharply curtailed, it will give presidents much more authority over independent agencies – with both legal and political consequence.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
