President Donald Trump and a cadre of supporters have urged the U.S. Supreme Court to wipe out what remains of a 90-year-old ruling that empowers Congress to prohibit the president from firing certain agency officials at will, arguing the decision was flawed when originally issued and is now well past its prime.
The high court's 1935 opinion in Humphrey's Executor v. United States — considered the foundation for today's vast system of independent "fourth branch" administrative agencies — was "poorly reasoned," full of legal and factual errors, and inconsistent with both the text of the U.S. Constitution and prior Supreme Court holdings, the president and a handful of amici argued in a dispute over Trump's firing of Democratic Federal Trade Commission member Rebecca K. Slaughter.
Even though several recent Supreme Court decisions have limited its reach, a "zombified" version of Humphrey's Executor is still wreaking havoc on the government and unconstitutionally limiting the president's ability to control the executive branch, they said. The justices must finally overturn the decision and restore the president's removal power to the robust authority the Constitution's framers envisioned, they argued.
"Unlike a fine wine, Humphrey's Executor has not gotten better with age. Instead, its poor reasoning has soured," conservative advocacy group Americans for Prosperity Foundation said in a Thursday amicus brief.
In September, the Supreme Court took the rare step of granting certiorari before judgment in the legal battle over Slaughter's firing, bypassing the normal process of letting lower appellate courts weigh in on the matter first.
The justices agreed to consider if specific limitations on the president's power to fire FTC members without cause violate the separation of powers and, if so, whether to overturn Humphrey's Executor. They'll also decide whether federal courts can prevent a person's removal from public office.
The court said it will hear arguments in the case during its December sitting and has asked Slaughter to file a response brief by Nov. 7.
"This case raises constitutional questions of surpassing importance," Trump said in an Oct. 10 brief.
He claimed removal is one of the president's "conclusive and reclusive" powers authorized by Article II of the Constitution and an "indispensable tool of control." The Supreme Court, he said, recognized as much in at least two rulings issued before Humphrey's Executor and in four more recent decisions, including the justice's 2024 ruling in Trump v. United States that dealt with presidential immunity for official acts committed in office.
The Constitution might empower Congress to structure the executive branch, Trump said, but that authority is limited to creating office, defining their powers, setting term limits and establishing compensation schemes. All other actions relating to the control of the executive branch are vested in the president, he said. That's why, over the past 15 years, the Supreme Court has slowly cabined the reach of Humphrey's Executor's ruling by finding multiple levels of removal protections are unconstitutional in 2010 and axing removal protections for independent agencies led by single officials in 2020 and 2021.
Before Humphrey's Executor, Trump said the Supreme Court ruled in Shurtleff v. United States in 1903 that the president could remove a general appraiser of merchandise for reasons not specified in a governing statute without warning, and it struck down in Myers v. United States in 1926 a statute that required the president to obtain the U.S. Senate's approval to fire a postmaster.
"Congress's authority 'to structure the executive branch,' enables it to establish and organize executive departments underneath the president — not to establish a fourth branch that siphons executive power away from the chief executive's control," Trump said.
That's why he claims he's allowed to fire independent agency officials, like Slaughter, despite statutory provisions that purport to give them for-cause removal protections, according to his brief.
Slaughter, who was reappointed to the FTC in 2024 by President Joe Biden, was fired by Trump in March because her continued service on the commission was "inconsistent" with his priorities, according to court documents. But a Washington, D.C., federal judge ordered her reinstatement in July after finding the Federal Trade Commission Act allowed Trump to fire commissioners only for "inefficiency, neglect of duty, or malfeasance in office."
The act's for-cause removal provision, and dozens of similar ones that apply to other independent agencies, are based on the Supreme Court's holding in Humphrey's Executor, which involved a dispute over President Franklin D. Roosevelt's attempt to fire an FTC commissioner appointed by his predecessor, President Herbert Hoover.
There are at least 12 other current lawsuits that have been filed by independent agency officials who claim they were unlawfully fired by Trump even though they were protected by similar for-cause removal provisions.
Americans for Prosperity Foundation and two other friends-of-the-court, the Washington Legal Foundation and University of Minnesota Law School professor Ilan Wurman, focused their attacks on the basis for the court's Humphrey's Executor ruling.
WLF, for example, said it led to the current-day "anemic view of executive power" that Slaughter urges and that would be unrecognizable to the country's founders.
"The president enjoys inherent authority to remove executive officers at will, consistent with the Framers' view of a unitary executive revealed in the Constitution they adopted," the legal nonprofit said in a Tuesday brief. "Any attempt to cut back on this power risks undermining the executive branch's ability to faithfully execute the laws – along with the peoples' ability to hold a singular president accountable for his administration's actions."
Wurman added in a Thursday brief that Congress cannot restrict the president's removal power any more than it can restrict his pardon power.
But Trump also argued Humphrey's Executor can't be applied to today's FTC. The commission in 1935 wielded far less power than it does now, he said. Today's FTC operates almost solely in the executive power realm by engaging in rulemaking, filing civil lawsuits to seek monetary penalties, issuing fines and even dealing with foreign governments.
If the Supreme Court decides to uphold Humphrey's Executor — which seems unlikely given recent emergency docket rulings — Trump claimed he would still have the authority to fire Slaughter because the FTC clearly engages in executive power, and any congressionally imposed limitations on his ability to fire an officer acting on his behalf would violate the separation of powers.
"The FTC has always exercised executive power, and it certainly exercises immense executive power now, not least because dozens of later statutes have expanded its bailiwick," Trump said.
The same logic would likely apply to his power to remove officials at the National Labor Relations Board, the Consumer Product Safety Commission and the Merit Systems Protection Board, Trump argued. The Supreme Court has already allowed the president to fire officials from those agencies while they challenge their removals.
However, the Federal Reserve would be an "anomaly," he said, because of its unique history. The justices wouldn't have to consider whether Fed governors are removable without cause in this case, he added. The court has already agreed to hear arguments in January over the president's bid to fire Federal Reserve Gov. Lisa Cook while a lawsuit over her removal is pending.
Finally, Trump argued courts have no power to issue orders reinstating a person who was removed from public office. First, reinstatement has never been a traditional remedy for firings, he said.
Congress specifically instructed that requests for back pay must go through administrative proceedings under the Civil Service Reform Act, according to Trump's brief. And since that act prohibits presidential appointees from receiving back pay, Slaughter's remedial claim fails, the president said.
The Supreme Court should instruct lower court's to follow Congress' explicit wishes, Trump said.
"Especially where, as here, the president removes an agency head, the answer has never been for courts to countermand that decision, leaving her free to wield executive power in the president's name but without his confidence," Trump said. "The answer instead lies with Congress, which has decided against judicial remedies here, and the political process, which continues to unfold."
Trump is represented by D. John Sauer, Sarah M. Harris and Vivek Suri of the U.S. Solicitor General's Office, Brett A. Shumate, Eric D. McArthur, Mark R. Freeman, Michael S. Raab, Daniel Aguilar and Laura E. Myron of the U.S. Department of Justice's Civil Division, and Lucas Croslow and Alex Potapov of the Federal Trade Commission.
Slaughter is represented by Amit Agarwal, Beau Tremitiere and Benjamin L. Berwick of the Protect Democracy Project, Aaron H. Crowell, Gregory A. Clarick and David Kimball-Stanley of Clarick Gueron Reisbaum LLP, and Laurence M. Schwartztol of Harvard Law School's Democracy and Rule of Law Clinic.
Washington Legal Foundation is represented in-house by Cory L. Andrews and Zac Morgan.
Americans For Prosperity Foundation is represented in-house by Michael D. Pepson.
Wurman is represented by himself.
The case is Trump et al. v. Slaughter, case number 25-332, in the Supreme Court of the United States.
Oct 16
Deal Summary
