7 Reasons SCOTUS Needs to Declare Humphrey’s Executor All Dead
The United States Supreme Court will hold oral argument in early December in Trump v. Slaughter,to decide whether the President of the United States has the authority to remove a Commissioner of the Federal Trade Commission. In agreeing to hear the case on an expedited time frame, the high court also directed the parties to address whether it should overrule Humphrey’s Executor—a 1935 case in which the Supreme Court held that Congress could limit the president’s authority to remove officials of so-called independent agencies.
As NCLA argued in the amicus brief it filed in support of the Trump Administration law week, the Supreme “Court should overrule the holding, reasoning, and later reformulations of Humphrey’s Executor.
Here are seven reasons why.
But first, a brief recap of the case.
During his first term in office, President Trump in 2018 appointed Rebecca Slaughter to serve as a member of the Federal Trade Commission. The Senate, as required by the Constitution, confirmed her appointment. In 2024, President Biden reappointed Slaughter to serve on the FTC, with Congress again confirming her appointment. As FTC Commissioners serve five-year terms, Slaughter’s term was set to expire in 2029. However, in March of 2025, President Trump informed Ms. Slaughter that he had removed her “from the Federal Trade Commission, effective immediately,” because her “continued service on the FTC is inconsistent with [the President’s] Administration’s priorities.”
Ms. Slaughter responded by filing suit in a federal district court, claiming Trump could not remove her from the FTC because Congress, by statute, provided a President could only remove a Commissioner for “inefficiency, neglect of duty, or malfeasance in office.” The district court agreed and entered an injunction ordering Ms. Slaughter’s reinstatement.
The Trump Administration sought a stay or a freeze of the injunction from both the district court and the federal D.C. Circuit Court of Appeals. Both courts denied the stay, leaving the injunction in place and Ms. Slaughter on the FTC. In denying the Trump Administration’s request for a stay, the courts held they were bound by Humphrey’s Executor, which had upheld the for-cause removal provision for FTC Commissioners.
Following the Trump Administration’s application for a stay and certiorari before judgment, the Supreme Court stayed the lower court’s order reinstating Ms. Slaughter as a Commissioner and granted certiorari, directing the parties to brief two questions: “(1) Whether the statutory removal protections for members of the Federal Trade Commission violate the separation of powers and, if so, whether Humphrey’s Executor v. United States, 295 U. S. 602 (1935), should be overruled. (2) Whether a federal court may prevent a person’s removal from public office, either through relief at equity or at law.”
Oral argument has been set for Monday, December 8, 2025.
Returning, then, to why the Supreme Court should overrule Humphrey’s Executor:
1. It’s the Constitution Stupid!
Article II of the Constitution vests “the Executive power” in “a President” of the United States. It does not vest “some” or “most” Executive power in the President—it vests all Executive power in the President. It also doesn’t vest the totality of that executive power in a branch of government, but in “a President”—one man. That one man currently is Donald J. Trump.
The text, history, and the structure of the Constitution establish that Executive power includes, and, by necessity, it must include, the absolute and unqualified power to removal officials charged with executive power.
At the time of the founding, “executive power” had a broad meaning which included not merely law enforcement power, but also the power to exercise “the Nation’s action, strength, or force.” In other words, the President held the power of the Nation. This power reached beyond law enforcement and included the President’s forceful handling of foreign affairs.
To exercise that broad executive power that the Constitution vested solely in “a President,” executive power necessarily included the power to appoint, oversee, and remove officials to assist the Executive. The Framers recognized this reality but also limited the President’s appointment power, by requiring the President to obtain Congress’ “advice and consent” for appointments. The Constitution, however, included no similar limitation on a President’s removal authority, leaving the President with an absolute and unqualified removal authority.
Because Article II of the Constitution vests in the President an absolute and unqualified removal power, Congress cannot limit Trump’s ability to remove Ms. Slaughter to cases of “inefficiency, neglect of duty, or malfeasance in office.”
2. Humphrey’s Executor Wrongly Concluded the FTC Does not Perform Any Executive Function.
The Supreme Court in Humphrey’s Executor concluded otherwise—sort of. The key here is to understand that in Humphrey’s Executor, the Supreme Court maintained FTC Commissioners “occup[y] no place in the executive department and … exercise[] no part of the executive power vested by the Constitution in the President.” 295 U.S. at 628.
That premise is wrong: As the Supreme Court has since acknowledged, the Court’s conclusion in Humphrey’s Executor “that the FTC did not exercise executive power has not withstood the test of time.” In fact, the conclusion in Humphrey’s Executor that the FTC did not exercise executive power conflicted with the Court’s own analysis in that case.
Specifically, in discussing the FTC’s various powers, the Supreme Court noted in Humphrey’s Executor that the federal agency could enforce its cease-and-desist orders in the federal circuit courts of appeals. And the Supreme Court has previously stressed that “[a] lawsuit is the ultimate remedy for a breach of the law, and it is to the President … that the Constitution entrusts the responsibility to ‘take Care that the Laws be faithfully executed.’” Buckley v. Valeo, 424 U.S. 1, 138 (1976) (quoting U.S. Const. art. II, § 3). Thus, that the FTC had and has enforcement authority, including now the power to seek monetary penalties against private parties on behalf of the United States, is proof positive that the FTC exercises executive power.
3. The FTC is Doubly Executive
Not only does the FTC exercise the President’s executive power by, among other things, engaging in civil litigation to enforce scores of federal statutes, the Commission also exercises the President’s action, strength, and force abroad by collaborating with foreign officials in engaging in law-enforcement agencies. In fact, the Chair of the FTC regularly enters into Memoranda of Understanding and Cooperative Agreements, on behalf of the United States of America, with a variety of foreign officials, committing to work collaboratively with those governments to enforce the various statutes within the FTC’s purview. In this respect, the FTC is exercising both the law-enforcement authority of the Executive and the President’s power in foreign affairs—a separate component of his executive power.
It is doubly imperative, then, that the President maintain an absolute and unqualified removal power over FTC Commissioners and it is inconceivable to think Congress could limit the President authority to remove an FTC Commissioner: A weak FTC Commissioner or one opposing the President’s international policy decisions would threaten the President’s action, strength, and force abroad.
4. There’s No Such Thing Under Our Constitution as Quasi-Legislative or Quasi-Judicial Agency
As detailed above, Humphrey’s Executor erroneously concluded the FTC did not exercise executive power. While that mistake alone justifies reversal, the Supreme Court’s reasoning in Humphrey’s represented an equally flawed understanding of Separation of Powers that demands correction.
In Humphrey’s Executor, the Supreme Court described the FTC as “an administrative body created by Congress to carry into effect legislative policies embodied in the statute in accordance with the legislative standard therein prescribed, and to perform other specified duties as a legislative or as a judicial aid.” 295 U.S. at 628. The Court next cast the FTC as “act[ing] in part quasi legislatively and in part quasi judicially,” adding “[t]he authority of Congress, in creating quasi legislative or quasi judicial agencies, to require them to act in discharge of their duties independently of executive control cannot well be doubted; … .” Id. at 629. The Court then concluded that the power to create such agencies, included the “power to fix the period during which they shall continue, and to forbid their removal except for cause in the meantime.” Id.
This analysis runs headlong into the Constitution, as Justice Thomas concisely explained in his concurrence in Seila Law:
The Constitution does not permit the creation of officers exercising “quasi legislative” and “quasi-judicial powers” in “quasi-legislative” and “quasi-judicial agencies.” No such powers or agencies exist. Congress lacks the authority to delegate its legislative power, and it cannot authorize the use of judicial power by officers acting outside of the bounds of Article III. Nor can Congress create agencies that straddle multiple branches of Government. The Constitution sets out three branches of Government and provides each with a different form of power—legislative, executive, and judicial. See Art. I, § 1; Art. II, § 1, cl. 1; Art. III, § 1.
Humphrey’s Executor reasoning to the contrary demands correction.
5. The Very Concept of an “Independent” Agency Is Anathema to Our Constitution
In limiting the President’s removal authority in Humphrey’s Executor, the Supreme Court spoke passionately about the need for independent agencies. But as NCLA explained in its amicus brief to the Supreme Court: “The very concept of an ‘independent agency’ is anathema to the Constitution, which by design ensures the electorate maintains the power to hold both lawmakers and the law enforcer accountable.”
So-called “independent agencies” represent a crack in the foundation of our constitutional Republic for such agencies often exercise law-making power in utter disregard for the “Constitution[’s] promise[] that our elected representatives in Congress, and they alone, will make the laws that bind us.” Further, such “independent agencies wield substantial power with no accountability to either the President or the people, . . . ”
Just as Humphrey’s Executor improperly relied on what it called the quasi legislative and quasi-judicial functions of the FEC, the Supreme Court also wrongly rested its holding on the concept of independent agencies. The Supreme Court in Slaughter should acknowledge as much, and declare that fidelity to our Constitution structure compels accountability—not independence.
6. Saving Our Democracy
Overturning Humphrey’s Executor isn’t merely about returning to the Executive the full powers the Constitution vest in him under Article II; rather, reversing Humphrey’s Executor is essential to restoring “democracy” under our constitution. Afterall, the democracy underlying our constitutional Republic, comes from Americans exercise their rights to vote for Representatives, Senators, and the President. And the President, along with the Vice President, alone are the only officials chosen by the country, as a whole.
Allowing unelected agency heads and the agencies they control to thwart the will of the President elected by “We the People,” represents an attack on both our constitutional order and the voters who elected Donald Trump president in 2024. Humphrey’s Executor permitted that attack on our vote for who shall run the Executive branch and it is well past time to vindicate voters rights.
7. SCOTUS Must Begin to Tailor a Seamless Garment of Separation of Powers
Overturning Humphrey’s Executor is imperative and not merely to correct the Supreme Court’s erroneous conclusion in that case that the FTC does not exercise executive power. Rather, reversing that decision is necessary for the Court to restore order to its Separation of Powers jurisprudence.
For the last century, the Supreme Court has drifted from the original understanding of Separation of Powers—a concept ground in the vesting of powers in the three branches of government. While recently, the Supreme Court has begun to return to first principles, the justices have done so by applying non-textual concepts such as the nondelegation doctrine, the intelligible principle test, and the major questions doctrine. The Court should change course by overruling Humphrey’s Executor, and in doing so adopting a toward a more unifying approach to administrative law—one grounded in the Constitution’s vesting clauses.
October 24, 2025