The US Supreme Court seemed poised Monday to give the president the power to remove members of independent agencies such as the Federal Trade Commission for any reason, a departure from the FTC Act’s removal protection.
The US Supreme Court seemed poised Monday to give the president the power to remove members of independent agencies such as the Federal Trade Commission for any reason, a departure from the FTC Act’s removal protection.The six justices appointed by Republican presidents asked pointed questions of the lawyer for former FTC Commissioner Rebecca Kelly Slaughter, who sued President Donald Trump challenging the legality of his firing of her for policy differences in March.
Chief Justice John Roberts described the court’s 1935 decision in Humphrey’s Executor v. United States, which is a key basis for Slaughter’s arguments, as “dried husk,” because the FTC’s powers had expanded so much since then. Solicitor General D. John Sauer echoed that description in his rebuttal argument.
Sauer also told the justices that independent agencies without strong presidential control are “a direct threat to our constitutional structure" and Humphrey's Executor was "grievously wrong when decided.”
Roberts noted that the court’s 2020 decision in Seila Law vs. Consumer Financial Protection Bureau, which concluded that a law creating single-headed agencies with directors who can only be removed for cause, was unconstitutional, showed the court’s willingness to impose limits on Humphrey’s Executor.
Justice Sonia Sotomayor pointed to the FTC’s “cease and desist” authority as a difference between the agency’s power now and when Humphrey’s Executor was decided. “Most of the powers are the same,” she said.
She asked Amit Agarwal, who was arguing for Slaughter, whether the answer was to sever the power that the agency uses today that it did not in 1935 instead of removing the FTC’s Act’s “for cause” removal provision. Agarwal answered affirmatively.
Justice Brett Kavanaugh questioned Agarwal about potential remedies in the case, saying they have argued that “chaos and disruption” would ensue if Slaughter loses, in addition to telling the high court “don’t strike down the entire agency.”
Kavanaugh said that is unlikely to occur but hypothesized on what would happen if Slaughter lost on the merits. “The proper remedy is to simply sever the for-cause removal provision, not to get rid of the FTC. Do you agree with that?” Kavanaugh asked.
“The remedy is not to get rid of the FTC, but I think there is an analytically difficult question about whether the proper remedy would be to sever the for-cause removal provision as opposed to depending on the nature of the ruling, maybe one isolated power,” Agarwal said.
— Threat to Constitutional structure —
Sauer said in response to a question from Justice Clarence Thomas that there should be no restrictions on the president’s removal power.
Sauer later said that Congress “took Humphrey's and ran with it in the building of the modern administrative state and the proliferation of independent agencies.”
But Agarwal pushed back and said the court should adhere to the Humphrey’s Executor precedent.
“Experience is the great teacher,” Agarwal told the justices. “We’re talking about more than two dozen traditional independent agencies that have been elected by the people’s elected representatives, all of them by democratically elected presidents.”
“Why did no president challenge the structure from 1935 to 2025?” Kavanaugh asked Sauer. “We have had a lot of presidents who have had strong views of Article II. For 90 years it stood not directly challenged. Why do you think that is?”
The three justices appointed by Democratic presidents seemed supportive of Slaughter’s position and expressed concern about granting the president too much power.
Justice Elena Kagan said of Sauer’s expansive interpretation of Article II of the Constitution’s provision that all executive power should be vested in the president, “it’s a little hard to see how you stop.”
She also said if the court gives the president illimitable removal power over agencies, you could see a future court expand that to courts created by Congress such as the Court of Federal of Claims and the US Tax Court.
Sauer said: “We aren’t challenging them.”
Kagan replied: “I know you aren’t challenging them, but you’re missing the point.”
— Role of independent agencies —
Justice Ketanji Brown Jackson said that independent agencies have an important role in the government.
Congress was “doing something important in the interest of the American people, not in an effort to strip the executive of authority,” Jackson said, “but to fulfill its own Article I obligations to legislate in the best interest of the American people.”
Pointing to the genesis of the country in overthrowing a monarchy, Jackson told Sauer: “I don’t understand how Congress is less democratically accountable” than the executive.
But Sauer later pushed back and said that the president being deprived of a strong control over agencies is anathema to a republican form of government.
“You are asking us to destroy the structure of government and to take away from Congress its ability to protect its idea that the government is better structured with some agencies that are independent,” Sotomayor told Sauer.
The case originated when, on March 18, Trump fired Slaughter and her fellow Democratic Commissioner Alvaro Bedoya for policy differences, which goes against the provisions of the FTC Act, which states commissioners can only be removed for cause.
On July 17, a district court judge said Slaughter’s removal was “unlawful.” Bedoya had resigned from the FTC in June.
The US Court of Appeals for the DC Circuit granted a stay in the case, again barring Slaughter from her role. On Sept. 2, in a 2-1 order dissolving the stay, the majority of the judges said: “The public interest favors denying the government’s application.”
The Supreme Court agreed later in September to hear the case.
Other independent agencies, such as the Federal Energy Regulatory Commission, were created by Congress after the Supreme Court’s unanimous ruling in Humphrey’s Executor. The statute creating the nation’s energy regulator, like the FTC Act, said that a commissioner may be removed by the president only for “inefficiency, neglect of duty, or malfeasance in office.”
Aside from Slaughter, FTC Chairman Andrew Ferguson, former FTC Chairman Jon Leibowitz* and Bedoya attended the arguments. Slaughter declined to take questions afterwards.
*Corrected on Dec. 8, 2025 at 22:54 GMT: A previous version of this story misspelled Leibowitz's last name
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