Antitrust Law Daily Wrap Up, AGENCY NEWS: In Slaughter case, Justice Department urge Supreme Court to overturn Humphrey’s Executor, (Oct 15, 2025)

By Lynn Stanton,TR Daily

The D.C. appellate court had held that President Trump lacked authority under Humphrey’s Executor to fire FTC Commissioner Slaughter.

On behalf of President Trump, the Department of Justice has urged the Supreme Court to uphold the president’s authority to remove commissioners from the Federal Trade Commission and other agencies that exercise executive power and to overturn a 1935 decision—Humphrey’s Executor v. U.S.—that held that the president did not have that authority because the FTC’s powers were quasi-judicial and quasi-legislative, rather than executive, and because it was intended by Congress to be independent (Trump v. Slaughter, No. 25-332 (U.S. Oct. 10, 2025)).

The high court agreed last month to stay a federal district court injunction that prevented the enforcement of President Trump’s firing of Rebecca Kelly Slaughter as an FTC commissioner and said it would review the case prior to a judgment on the merits by the U.S. Court of Appeals for the District of Columbia Circuit.

In February, President Trump issued an executive order asserting executive branch authority over independent regulatory agencies. In March, he asserted that authority to fire the FTC’s two Democratic commissioners, Ms. Slaughter and Alvaro Bedoya, who have maintained since that time that the firings were illegal.

In a brief filed Friday, the Justice Department said, “The modern-day FTC, like its many independent-agency counterparts and its 1935 predecessor, exercises executive power—indeed, quite a bit of it. That brings those agencies within the President’s removal power even under the reasoning of Humphrey’s Executor itself, which ‘at least had the decency formally to observe the constitutional principle that the President had to be the repository of all executive power.’ Morrison v. Olson, 487 U.S. 654, 726 (1988) (Scalia, J., dissenting). If Humphrey’s Executor is not already a dead letter, this Court should overrule it and end independent agencies’ ‘serious, ongoing threat to our Government’s design.’”

It added, “Finally, this Court should hold that courts cannot reinstate executive officers removed by the President. Flawed as Humphrey’s Executor was, it involved only back pay; it did not compel the President to entrust executive power to someone he had already removed. Article II, history, traditional remedial principles, and applicable modern-day statutes all establish that courts may not issue any remedy, legal or equitable, to prevent an executive officer’s removal—especially where, as here, the officer was appointed by the President.

Meanwhile, in an amicus curiae brief in support of the petitioners, the Washington Legal Foundation said, “WLF believes that unconstitutional restrictions on the President’s removal power have unleashed an unaccountable regulatory apparatus on the American citizenry. Restoring the President’s power to remove principal officers is thus crucial for democratic accountability. ‘Without such power, the President could not be held fully accountable for discharging his own responsibilities; the buck would stop somewhere else.’ Free Enter. Fund, 561 U.S. at 514.”

The court’s ruling in Humphrey’s Executor “effectively granted Congress carte blanche to create a separate branch of government, one of independent boards and commissions, whose principal officers are removable only for ‘inefficiency, neglect of duty, or malfeasance in office.’ And this distortion of the separation of powers begat others, culminating in ‘an Executive Branch that cannibalizes itself,’ Trump v. United States, 603 U.S. 593, 640 (2024)—a vast, unaccountable administrative state capable of binding the citizenry with agency rules that carry the force and effect of law.”

It added, “Unified control, in contrast, fosters true accountability. ‘Congress has plenary control over the salary, duties, and even existence of executive offices. Only Presidential oversight can counter its influence.’ Free Enter. Fund, 561 U.S. at 500. This Court should abandon the unconstitutional limit on the President’s removal power that Humphrey’s Executor created out of thin air.”

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