The Supreme Court on Monday heard arguments in Trump v. Slaughter, a challenge to long-established limits on the president’s ability to remove members of independent federal agencies. A majority of justices appeared open to overruling Humphrey’s Executor, the 1935 decision that lets Congress protect commissioners at bodies like the Federal Trade Commission from removal except for inefficiency, neglect of duty or malfeasance.
The case arose after President Trump sought to remove FTC commissioner Rebecca Kelly Slaughter. Solicitor General D. John Sauer urged the court to discard Humphrey’s Executor, arguing that it unlawfully restricts the president’s Article II removal power and allows Congress to create independent agencies that siphon executive power away from the chief executive. “Humphrey’s must be overruled,” Sauer said, calling the precedent “a decaying husk” that tempts Congress to create a “headless fourth branch” insulated from democratic control.
Slaughter’s lawyers countered that removal protections fall within Congress’s authority to structure government institutions and have a long constitutional pedigree. Attorney Amit Agarwal stressed that multi-member commissions with some removal protections have existed since the early republic and that the FTC Act has been followed by presidents of both parties for more than a century. He warned that overturning Humphrey’s would upend long-settled expectations and could threaten the independence of many agencies.
The court’s three liberal justices—Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson—pressed those themes, warning that a ruling for the administration could cause widespread disruption. Sotomayor said the petitioners were asking the court “to destroy the structure of government” and strip Congress of its ability to preserve agency independence. Kagan asked where the administration’s rationale would lead, noting that civil service protections and independent institutions exercise executive, legislative and judicial-like powers across government. Jackson questioned why the court should infer a constitutional defect when Congress has the power to create and organize agencies.
Conservative justices signaled more sympathy for the administration. Brett Kavanaugh said broad delegations to unaccountable agencies raise “enormous constitutional and real-world problems for individual liberty.” Neil Gorsuch acknowledged the migration of legislative power into agencies and suggested that if those entities become presidentially controlled, it strengthens the case for reexamining removal restrictions. Samuel Alito and Clarence Thomas also pressed defense counsel on the practical limits of Congress’s authority to create insulated, multi-member commissions, probing whether the government’s position would allow Congress to turn cabinet departments into protected commissions.
Agarwal tried to draw lines, saying the Constitution would bar Congress from converting cabinet-level departments wielding the president’s “conclusive and preclusive” powers into insulated commissions. Gorsuch questioned whether such a line would be workable, asking how courts would decide which powers are exclusive to the president and which are not.
Background: the Humphrey’s Executor precedent and recent erosion
Humphrey’s Executor established an exception to at-will presidential removal for multimember agencies that exercise quasi-legislative or quasi-judicial functions. In recent years, the Supreme Court’s conservative majority has narrowed that precedent, most notably by invalidating the removal protections for the director of the Consumer Financial Protection Bureau (2020) and for the head of the Federal Housing Finance Agency (2021).
The Slaughter case presents the court with an opportunity to overturn Humphrey’s outright. The Trump administration contends that since 1935 the FTC has accumulated significant executive functions—enforcing more than 80 federal statutes and regulating diverse areas from food labeling to credit and competition—and that commissioners executing federal law must be removable at will to allow the president to ensure faithful execution of the laws.
Slaughter was appointed to the FTC by Trump in his first term and reappointed by President Biden. In March she received an email from the president saying her “continued service on the FTC is inconsistent with my Administration’s priorities.” She and another commissioner challenged removals they say violated the FTC Act and Supreme Court precedent. A federal district court ordered her reinstated; the D.C. Circuit issued a temporary order allowing her removal, then later reinstated her. The Supreme Court agreed to hear the case and permitted Trump to remove Slaughter while it considers whether removal protections for FTC commissioners are constitutional.
If the court upholds the administration, the decision could put at risk removal protections for more than two dozen independent agencies Congress has created to insulate members from political pressure. Opponents say those protections reflect a longstanding compromise between the branches and are key to independent decision-making in areas where technical expertise and political insulation were intentionally preserved by lawmakers. More than 200 Democrats in Congress filed a friend-of-the-court brief arguing that multimember boards protected from at-will removal are a century-old feature of the federal government, enacted and signed by presidents from both parties.
The decision also comes amid other removal disputes. The court has allowed the president temporarily to remove members of agencies such as the National Labor Relations Board and the Merit Systems Protection Board while litigation proceeds. The administration has also attempted to remove a member of the Federal Reserve Board of Governors, Lisa Cook; the court has so far let her remain while her separate case is pending and will hear arguments in that matter next month.
What’s at stake
At issue is a basic separation-of-powers question: whether the president must be able to remove officers who wield executive authority without cause, or whether Congress can insulate certain multimember bodies to protect independence and prevent politicization. A decision for the administration could expand presidential control over independent agencies and reshape regulatory governance; a decision preserving Humphrey’s would maintain a century-old accommodation that keeps many agencies at arm’s length from the White House.
During Monday’s arguments the justices repeatedly returned to the practical consequences of either ruling, testing the boundaries of both sides’ positions and probing how any new rule would be administered. The case could produce sweeping changes to the structure and accountability of federal agencies depending on how narrowly or broadly the court frames its holding.