Slaughter case tests Trump's power over agencies

Since the late 19^th century, independent agencies have been structured to avoid direct political control by the president. Most are typically governed by a multi-member board of five-to-seven members. Although appointed by the president and subject to confirmation by the Senate, appointees frequently serve for staggered terms longer than a four-year presidential term to minimize political interference. They are also statutorily protected from arbitrary removal. The Constitution is silent on the president's power to remove independent board members.   

Trump fired Federal Trade Commissioner (FTC) Rebecca Slaughter, whose term was set to expire in 2029. He ignored the statutory requirement that removal be "for inefficiency, neglect of duty, or malfeasance in office" (15 U.S.C § 41). She sued Trump in response (Slaughter v. Trump, D.D.C. 1:25-cv-909).

The district court held Trump violated Section 41 and ordered her reinstated. On Sept. 2, the Court of Appeals (2-1) refused to stay the district court's order (D.C. Cir. 25-5261) reasoning that "the government has no likelihood of success on appeal given the controlling and directly on point Supreme Court precedent" of Humphrey's Executor v. United States (295 U.S. 602 (1935)).  

On Sept. 22, the Supreme Court granted Trump a writ of certiorari before judgment and a stay enabling Trump to prevent her from continuing to serve on the FTC (Trump v. Slaughter (No. 25A264 (25-332)). The case will be argued on the merits in Dec. 2025.

The case presents two questions: 1) Whether the statutory removal protections for members of the FTC violate the separation of powers and, if so, whether Humphrey's Executor v. United States should be overruled; and 2) Whether a federal court may prevent a person's removal from public office.

The framers, whose views were influenced by their experience with King George III, feared that an all-powerful executive could devolve into a monarchy. To safeguard the rights of individuals and limit the concentration of power, the Constitution separates the power of the national government among the legislative, the executive, and the judicial branches of government. This separation of power was intended to prevent any one branch from becoming dominant.

The framers did not expect this division or separation of power to be airtight, however. As James Madison stated in Federalist 47, the creation of distinct branches "did not mean that these departments ought to have no partial agency, or no control over the acts of each other." The power given each branch operates within a system of "checks and balances" whereby power is shared on a limited basis with the other branches. Thus, each branch has a limited power to "check" the actions of the other branches. The constitutional principle of "checks and balances" arguably gives Congress the power to "check" unreviewable presidential power by creating staggered terms for board members and by requiring "for cause" removal.

In Selia Law, the court (5-4) held that the statutory provision limiting the removal authority to "inefficiency, neglect of duty, or malfeasance in office" violated the Constitution's separation of powers (Selia Law v. Consumer Financial Protection Board (591 U.S. 197 (2020)).

The single-director structure of the Consumer Financial Protection Board (CFPB) allowed the director to wield significant power without meaningful control by anyone. This feature constituted a violation of separation of powers. As a result, the majority concluded that the director could be removed "at will" by the President.

In Humphrey's Executor, which directly supports Slaughter's position, the Supreme Court upheld the FTC "for cause" removal requirement. The FTC was created in 1914 as an independent, multibody organization of experts committed to the prevention of unfair economic competition through the exercise of quasi-judicial and quasi-legislative powers.

The court unanimously held that the removal requirement was constitutional and did not violate the President's Article II powers:  

Such a body cannot in any proper sense be characterized as an arm or an eye of the executive. Its duties are performed without executive leave, and, in the contemplation of the statute, must be free from executive control. To the extent that it exercises any executive function --as distinguished from executive power in the constitutional sense -- it does so in the discharge and effectuation of its quasi-legislative or quasi-judicial powers, or as an agency of the legislative or judicial departments of government.   

Congress has the authority to create and organize the institutions of American governance. When Congress and the president agree to the removal requirements for independent agencies, those statutory boundaries should be respected by the presumption of constitutionality. Although the challenges the FTC face today are different from those in 1935, the need for independence is the same as it was 90 years ago. It is not clear whether the removal authority can be severed from the law without compromising the fundamental purpose of the statute.    

On Sept. 18, Trump asked the Supreme Court to stay the lower court decision allowing Lisa Cook to remain as a Federal Reserve Governor (Cook v. Trump, 25-A; D.C. Cir. 25-5326 (Sept.15); D.D.C. 25-cv-2903 (Sept. 9)). The Board of Governors consists of seven members, with each member holding office for a term of 14 years.

In the application for a stay, Trump argues Cook was fired "for cause" (committing mortgage fraud by claiming two primary residences prior to joining the Board) and his decision is unreviewable. Cook claims that her Fifth Amendment due process protections were violated because she was not given a sufficient opportunity to contest the firing.

Trump fired Slaughter without providing a reason. In contrast, Trump fired Cook allegedly "for cause." He argues that so long as a reason is given, the courts cannot examine the reason. This smacks of pretext and the king-like assertion of power. Published reports indicate that at least three Trump Cabinet members called multiple homes their primary residences on mortgages, which is similar to the allegation against Cook.

Independent federal administrative agencies have jurisdiction over some of the most important and controversial areas of law affecting the American public. Congress has statutorily limited presidential removal authority under its power to make all laws "necessary and proper" to carrying out the Nation's laws (Article I, § 8, Cl. 18). But if the court finds Trump's separation-of-powers claims persuasive, Congress's authority could be weakened, independent agencies could be dismantled, and the President's decisions could become effectively immune from judicial review.