An Outline of Congress’s Interest in the Slaughter Case

Following up on my last post, I think an institutional position for Congress in the Slaughter case would look something like this.

First, the Court can avoid addressing the precedential status of Humphrey’s Executor by holding that courts cannot intervene in a dispute regarding an officer’s purported removal from a multimember commission like the Federal Trade Commission (FTC). The government makes several broad constitutional and statutory arguments against judicial power to provide relief in this case (some of which depend on its view that Slaughter is a presidential subordinate). Brief for Petitioners at 38-47. Whatever the merit of those arguments, there is none to the government’s suggestion that the Court should both reach the substantive question of whether the removal limitation in the FTC Act is constitutional and hold that courts in any event lack the power to grant any relief. If the courts lack the power to grant relief, there is no basis for reaching the merits of Slaughter’s claims.

There also may be narrower grounds on which the Court could conclude that relief is unavailable here, even if Slaughter was unlawfully terminated. Courts are generally reluctant to issue relief directly against the president. See, e.g., Swan v. Clinton, 100 F.3d 973 (D.C. Cir. 1996) (noting that issuing injunctive relief to require the president to restore a member he had removed from the National Credit Union Administration “at best creates an unseemly appearance of constitutional tension and at worst risks a violation of the constitutional separation of powers”). Moreover, the president (arguably) has caused no injury to Slaughter because, as Professor Bray notes, “an illegal removal cannot alter the officer’s legal status.” See Samuel L Bray, Remedies in the Officer Removal Cases, 17 J. Legal Analysis (forthcoming 2025).

If President Trump’s removal of Slaughter from the FTC was illegal, therefore, nothing prevents the other members of the FTC from continuing to treat her as a member. Slaughter’s injury is thus caused by the remaining members of the FTC, who have refused to do so. Since they are also defendants in Slaughter’s lawsuit, it might be argued that the Court could order relief against them (as suggested by Swan).

However, this also is problematic in the current posture of the litigation. Slaughter alleges that her FTC email has been cut off and she is listed as a former commissioner on the FTC website. But she does not allege that she has been excluded from a commission or vote, which is arguably the only injury that would violate her statutory rights as a commissioner. Indeed, it is not clear the FTC, which has only two other members of its statutory five-member board, enjoys a quorum to take lawfully effective action without her. See generally Nicholas R. Bednar & Todd Phillips, Commission Quorums at 56 (draft 2025) (“Requiring a majority of the statutorily-authorized membership places the onus on the president and the Senate to either expedite consideration of appointees or allow the commission to temporarily cease operations.”).

Accordingly, the Court may be able to avoid the merits of the removal issue altogether in this case.

Second, if the Court finds it necessary to revisit Humphrey’s Executor, it should not disturb the ruling that Congress may create independent multimember agencies and protect their members against at will presidential removal. Recent precedents have declined to extend Humphrey’s Executor to independent agencies that are headed by a single director and exercise substantial executive power. But these precedents do not warrant overturning Humphrey’s Executor for a simple reason: it is not necessary to overturn 90 years of judicial precedent to address the constitutional infirmity that the government alleges to exist.

In the email which purported to fire Slaughter from the FTC, the administration asserted that “[t]he exception recognized in Humphrey’s Executor does not fit the principal officers who head the FTC today” because “[a]s presently constituted, the FTC exercises substantial executive power.” The solution to this problem, if there is one, is to not allow the FTC to exercise “substantial executive power.” This is particularly true if, as the government suggests, the FTC did not exercise such executive power until sometime after Humphrey’s Executor was decided. It makes no sense to think that Congress, when it granted additional powers and duties to the FTC, intended or understood that such actions might jeopardize the FTC’s status as an independent agency. It is far more likely that Congress only delegated such powers to the FTC because it understood they would be exercised free of political influence or executive interference.

If the FTC or other agencies have been granted powers which cannot be constitutionally delegated to independent multimember boards, the exercise of those powers may be challenged by private parties who have been injured by them, as occurred in Free Enterprise Fund, Seila Law, and Collins v. Yellen. However, the Court should not follow the approach of those cases in striking down the removal limitations and only then considering whether the removal limitations are severable from the remainder of the statute. Instead, it should recognize that the existence of an independent agency is not itself constitutionally problematic, but only the exercise of unconstitutional powers by such an agency.

The Court did not seriously consider this approach in those prior cases for reasons that are inapplicable here. First, those cases involved recently established agencies with novel restrictions on removal. Second, the Court believed that Congress was on notice that these removal restrictions were problematic. Third, the Court did not believe or did not consider the possibility that the agencies could continue to exercise significant powers without striking down the removal limitations.

These reasons do not apply to multimember independent agencies like the FTC. Such agencies have existed since at least 1887, when Congress enacted the Interstate Commerce Act (ICA), which established the Interstate Commerce Commission (ICC). No constitutional objection was raised in Congress to the structure of the ICC, which called for five commissioners appointed to limited and staggered terms and who could be removed by the president only for inefficiency, neglect of duty, or malfeasance in office. The structure of the ICC, including its limitations on removal, was also unchallenged by the other branches. Not only was the ICA signed into law by President Cleveland, but the executive branch did not object to or challenge the constitutionality of its removal limitations. No president attempted to remove a commissioner of the ICC in contravention of the statutory limitations (or, for that matter, for any reason). Nor was the structure of the ICC challenged in court, and the Supreme Court repeatedly upheld the ICC’s various authorities under the statute. See, e.g., ICC v. Union Pacific RR Co., 222 U.S. 541 (1912) (upholding ICC order regulating rebates and discriminatory practices in freight rates); ICC v. Ill. Central RR Co., 215 U.S. 452 (1910) (upholding ICC order to correct an unjust rate classification); ICC v. Brimson, 154 U.S. 447 (1894) (upholding ICC’s authority to issue compulsory process in the course of its investigations).

Congress established several other independent multimember agencies in the ensuing decades, including the FTC, the Tariff Commission, and the Federal Reserve Board. Until the Court’s decision in Myers v. United States, 272 U.S. 52 (1926), the constitutionality of these agencies, including limitations on the removal of their members, was likewise uncontroversial. Indeed, because the whole point of establishing multimember agencies was to provide for collective decision-making by bodies of experts acting in a nonpartisan and independent manner, it would have made little sense to support the establishment of such an agency but maintain that the president should be able to replace its members at will. Instead, the members of the agencies were given limited and staggered terms so that there would always be members with considerable experience on the board and to ensure that each president would be able to replace some, but not all, of the members in a single term. Compare Seila Law, 591 U.S. at 218 & 225 (identifying differences between single director agencies and multimember boards).

Dicta in Myers strongly suggested that presidents might be able to remove at will the members of independent agency boards like the ICC. But this issue was not before the Court in Myers, and it appears the Court gave little attention to the implications of its language. This explains why a mere nine years later a unanimous Court, including six justices who served on the Myers Court and four who joined Chief Justice Taft’s majority opinion, held in Humphrey’s Executor that the president did not have the constitutional power to remove an FTC commissioner except as authorized by statute.

Here it is important to understand what was and was not in dispute in Myers and Humphrey’s Executor. Both cases involved claims for back pay relating to officers who were fired without statutory authorization before the expiration of their terms. In both cases the Court deemed it necessary to consider the constitutionality of the limitations on removal, although arguably the Court could have awarded back pay without addressing the separation of powers issues related to removal. Neither case, however, involved the exercise of any specific power by the officers or agencies in question, and therefore the Court was not required to decide how the limitation on removal affected the exercise of such power.

Nonetheless, in both cases the Court made broad statements about the exercise of powers by executive officers and independent agencies. In Myers, Chief Justice Taft explained that “[t]he degree of guidance in the discharge of their duties that the President may exercise over executive officers varies with the character of their service as prescribed in the law under which they act.” 272 U.S. at 132. First, he noted that many heads of departments and bureaus play a role in assisting the president in exercising his own constitutional responsibilities and in those cases, “they are exercising not their own but his discretion.” Id. Second, there are normal statutory duties which Congress devolves on department and agency officers. Taft explained that officers who exercise both the first and second types of functions must be removable at will because “[t]here is nothing in the Constitution which permits a distinction between the removal of the head of a department or a bureau, when he discharges a political duty of the President or exercises his discretion, and the removal of executive officers engaged in the exercise of their other normal duties.” Id. at 134. In addition, however, he contended that “[t]he ordinary duties of officers prescribed by statute come under the general administrative control of the President by virtue of the general grant to him of the executive power, and he may properly supervise and guide their construction of the statutes under which they act in order to secure that unitary and uniform execution of the laws which Article II of the Constitution evidently contemplated in vesting general executive power in the President alone.” Id. at 135. This implies that the president has a supervisory role with respect to the execution of these duties, but something less than the complete right of control he enjoys regarding subordinates when they are exercising “his discretion.”

A third category of functions involve those which Congress has explicitly or implicitly insulated from presidential control. Here Taft explains:

[T]here may be duties so peculiarly and specifically committed to the discretion of a particular officer as to raise a question whether the President may overrule or revise the officer’s interpretation of his statutory duty in a particular instance. Then there may be duties of a quasi-judicial character imposed on executive officers and members of executive tribunals whose decisions after hearing affect interests of individuals, the discharge of which the President cannot in a particular case properly influence or control.

272 U.S. at 135. Even as to these duties, however, Taft says the president “may consider the decision after its rendition as a reason for removing the officer, on the round that the discretion regularly entrusted to that officer by statute has not been on the whole intelligently or wisely exercised.” Id.

Finally, Taft refers to judges on legislative courts outside of Article III, such as territorial courts, which he views as “present[ing] considerations different from those which apply in the removal of executive officers.” Id. at 158. These considerations, one may infer, include the view Taft cites of Justice McLean, who pointed out in United States v. Guthrie that the argument for presidential removal “was based on the necessity for Presidential removals in the discharge of his executive duties and his taking care that the laws be faithfully executed, and that such an argument could not apply to the judges over whose judicial duties he could not properly exercise any supervision or control after their appointment and confirmation.” Id. at 156-57.

Most of this discussion had little or no bearing on the Myers case, which involved the removal of a postmaster. It is therefore hardly surprising that the Humphrey’s Executor Court viewed it as obiter dicta, a point which Justice Sutherland (the author of Humphrey’s Executor who had also joined Taft’s majority opinion in Myers) emphasized at some length. See Humphrey’s Executor, 295 U.S. at 626-28. Likely referring to much of the Myers discussion just recounted, Sutherland declared that “[i]nsofar as they are out of harmony with the views here set forth, these expressions are disapproved.” Id. at 626.

In truth, however, there was not that much disharmony between the Myers and Humphrey’s Executor views on the president’s authority to exercise control over the types of functions performed by independent agencies like the FTC. Clearly those functions all fall within the third category identified by Taft, which is that they are either quasi-judicial or they have been specifically committed to the discretion of the agency. The very fact that Congress committed these functions to an independent agency, of course, demonstrates that Congress intended that they be performed without presidential or executive interference, a point that Sutherland stresses repeatedly. See Humphrey’s Executor, 295 U.S. at 625 (citing legislative history that “it was essential that the commission should not be open to the suspicion of partisan direction,” “independent of executive authority,” “free from ‘political domination or control,’” and “not subject to the orders of the President”); id. at 626-25 (FTC was to be “free to exercise its judgment without the leave or hindrance of any other official or any department of the government”); id. at 628 (FTC’s “duties are performed without executive leave, and, in the contemplation of the statute, must be free from executive control”).

It is true that Myers asserts that even in such cases the president should be able to “consider the [independent] decision after its rendition as a reason for removing the officer.” But even taking this dictum as authoritative, its application to the case before the Humphrey’s Executor Court is debatable. First, nothing in either the FTC statute or Humphrey’s Executor prohibits a president from “considering” the votes of a commissioner in determining whether cause under the statute exists. Second, given the collective nature of decisionmaking at the FTC and other multimember agencies, it is hard to see why the president would ever need to remove an individual member simply on the basis that his or her votes were not “on the whole” intelligently or wisely cast. Finally, if one interprets the Myers dictum as meaning that the president must be able to remove an official after the fact for quasi-judicial decisions with which the president cannot properly interfere beforehand, it becomes difficult to understand why Taft thought a different result was possible with respect to legislative courts. The only distinction between the two seems to be that Taft labels certain types of officers and tribunals as “executive” and others non-executive.

This explains why the solicitor general in Humphrey’s Executor took the position that the president’s constitutional power of removal applied even to legislative courts like the Court of Claims. This was clearly viewed as preposterous on its face by the Court, which thanked the solicitor general for his “commendable candor,” but rejected his position out of hand. See 295 U.S. at 629. It also seems likely that Taft would have also rejected it. See Robert Post, Tension in the Unitary Executive: How Taft Constructed the Epochal Opinion of Myers v. United States, 45 J. Sup. Ct. Hist. 167, 186 (2020). But the logical distinction between such legislative courts and independent agencies exercising quasi-judicial functions seems to have escaped everyone but Taft.

Of course, neither Myers nor Humphrey’s Executor had to confront the question of whether a particular power is of such a nature that the president must be able to directly control its exercise. The broad statements in Humphrey’s Executor regarding the FTC’s functions being predominantly “quasi-legislative” or “quasi-judicial” may be taken as an indication of the Court’s view on those matters regarding the FTC’s functions at the time, but this was not really an issue in the case. The solicitor general did not claim the president could direct the FTC as to any of its functions, nor does it appear that he identified any particular function for which the president needed to provide particularly close supervision.

One has only to look to a famous report issued less than two years after Humphrey’s Executive to see how one could approach the independent agency issue from a functional perspective. The Report of the President’s Committee on Administrative Management (also known as the “Brownlow Committee”) was highly critical of independent regulatory agencies, which it said “suffer from an internal inconsistency . . . because they are vested with duties of administration and policy determination with respect to which they ought to be clearly and effectively responsible to the President, and at the same time they are given important judicial work in the doing of which they ought to be wholly independent of Executive control.” Brownlow Committee Report at 36. It proposed splitting the functions of these agencies into judicial and administrative functions, with the former remaining completely independent and the latter being placed into existing departments where it “would be directly responsible to the Secretary and through him to the President.” Id. at 37.

Needless to say, Congress did not accept this proposal. It declined to reorganize the independent agencies as proposed by the Brownlow Committee, instead choosing to place those functions it wished to be beyond executive control in those agencies under the authority of Humphrey’s Executor. Had Congress understood that these agencies could not be insulated from executive control, it might have assigned those functions elsewhere, changed the nature of the powers delegated, declined to delegate them at all, or adopted other safeguards designed to prevent or discourage political interference with the exercise of these powers. See generally Aaron L. Nielson & Christopher J. Walker, Congress’s Anti-Removal Power, 76 Vanderbilt L. Rev. 1 (2023).

To attempt to address the firing of an FTC commissioner with broad generalizations about the agency’s functions would be to repeat the mistakes made in Myers and Humphrey’s Executor. It may be that some of the FTC’s functions can be exercised by an agency wholly independent, some must be wholly subject to presidential control, and some are either unclear or can only be partially insulated from executive control. The appropriate time for courts to weigh in on these issues is when a private party is injured by the agency’s exercise of a power which it is claimed that it cannot validly have.

Contrary to the government’s view, the existence of an independent agency or the fact that agency employs a commissioner the president does not like is not a judicially redressable “injury” to either the government or the president. There is no need for the court to weigh in on the merits of the executive branch’s constitutional concerns until a private party asserts an injury. This approach will also avoid the necessity of addressing the severability question.

Third, if the Court determines that Slaughter was lawfully removed from office, it should not find that the removal limitation is severable from the remainder of the statute. In all likelihood, the Court will not address severability at all because it is not apparent there is any question in the case which requires addressing severability. However, the government asserts that “[r]reliance interests cannot save removal protections for multimember agencies, since those agencies will continue operating even after their removal restrictions are invalidated,” an assertion it bases on the assumption that the removal limitation for every independent agency will be found to be severable. Brief for Petitioners at 36.

It should be obvious that the executive branch would prefer the Court to hold the removal provisions severable, allowing the president to exercise personal control over the vast powers of these independent agencies. Congress provided these powers to these agencies on the understanding that they would be exercised without outside influence or political interference. It may be that these expectations have not been entirely realized in practice. See Adam White, Is Humphrey’s Executor Headed for Slaughter, SCOTUSblog (Oct. 2, 2025) (“The last nine decades have brought significant changes to the FTC from the time of Humphrey’s Executor, in terms of both its formal powers and its increasingly energetic—even ideological or partisan—approach to wielding them.”). This, however, is no justification for stripping away the remaining guardrails that protect against politicization of these agencies.

The Court has suggested that when a removal provision is invalidated, the severability analysis requires it to determine whether Congress would prefer (1) an agency which is “dependent” (i.e., subject to the president’s at will removal authority) but otherwise has all of the powers and duties Congress assigned to it; or (2) no agency at all. See Seila Law, 591 U.S. at 234; Free Enterprise Fund, 561 U.S. at 509. In purporting to answer this question on behalf of Congress, the Court is really creating a new law that was never enacted by Congress and thereby usurping congressional authority. Moreover, the Court’s answer to this question itself is “based on nothing more than speculation as to what the Legislature would have preferred.” Seila Law, 591 U.S. at 260-61 (Thomas, J., concurring in part and dissenting in part).

Beyond that, the question itself is flawed. As the Court itself acknowledges, there are many options for addressing the invalidity of a removal provision apart from the Hobson’s choice it offers. See, e.g., Free Enterprise Fund v. PCAOB, 561 U.S. 477, 509 (2010) (“the Court might blue-pencil a sufficient number of the Board’s responsibilities so that its members would no longer be ‘Officers of the United States’ [or] restrict the Board’s enforcement powers, so that it would be a purely recommendatory panel”). The Court rejects consideration of other options, though, because exercising such “editorial freedom . . . belongs to the Legislature, not the Judiciary.” Id. at 510.

The apparent modesty of the Court’s approach, however, conceals its systemic bias in favor of executive power at the expense of the legislature. Even if we grant the assumption (made by the Court in both Free Enterprise Fund and Seila Law) that a “dependent” agency is closer to Congress’s true preference than no agency at all, choosing that option greatly constrains Congress’s ability to mitigate the damage the Court has done to the original statutory scheme. This is because the president has little incentive to agree to legislation that would enhance the agency’s independence, limit the agency’s powers, or strengthen Congress’s own oversight role. Thus, the “modest” judicial approach as the effect, if not the purpose, of aggrandizing executive power at a time when even enthusiastic proponents of the unitary executive acknowledge it is growing out of control. See Saikrishna Bangalore Prakash, The Living Presidency: An Originalist Argument Against its Ever-Expanding Powers 3 (2020) (characterizing the growth of presidential power as a “creeping constitutional coup”).

The Court’s assessment of hypothetical congressional preferences has also relied on assumptions that have proven to be inaccurate. For example, consider the Consumer Financial Protection Board (CFPB), the constitutionality of which was at issue in Seila Law. In finding that Congress would have preferred a “dependent” CFPB to no CFPB, the Court relied in part on the drastic consequences of shutting down the agency, noting that it would cause a “major regulatory disruption” and that other agencies which might assume aspects of CFPB’s responsibilities “do not have the staff or appropriations to absorb the CFPB’s 1,500-employee, 500-million-dollar operations.” Seila Law, 591 U.S. at 237. The Court thus assumed that a dependent CFP would continue as before to carry out the mission assigned to it by law, absent any change in the governing statute. But things have not worked out that way. A federal district court has found administration officials have been “engaged in an unlawful effort to dismantle and eliminate the Consumer Financial Protection Bureau that had been created by Congress.” National Treasury Employees Union v. Vought, Civ. Action No. 25-0381 (D.D.C. Apr. 18, 2025). While the administration disputes this finding, there is no dispute that it has attempted to eliminate 90% of CFPB’s staff and dramatically curtail its regulatory activities without any congressional authorization.

From the congressional perspective, a “dependent” agency may be worse than no agency at all. The powers of such an agency may be weaponized for political purposes by the administration in power. The newly “dependent” FHFA director (made so by the Court’s decision in Collins v. Yellen) has been engaged in using his position to dig up information for the political benefit of the current president. See Editorial Board, Donald Trump and Letitia James, Lawfare Pals, Wall St. J., Oct. 10, 2025 (“Federal housing regulator Bill Pulte seems to believe his job is to dig through filing cabinets for dirt on Mr. Trump’s enemies . . . .”).

For these reasons the Court should not use its past approach to severability in connection with a potential overruling of Humphrey’s Executor. Instead of asking whether Congress would have preferred a “dependent” agency to no agency at all (an inquiry which is particularly problematic for agencies like the FTC that have existed and evolved over more than a century), the courts should decide challenges to an agency’s exercise of a particular power based on the nature of that power, the degree of presidential control over that power which the government asserts, and whether allowing the agency to continue to exercise that power would be clearly consistent with the congressional purpose in delegating it to the agency.

 

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