Antitrust Law Daily Wrap Up, CONSUMER PROTECTION NEWS: Order reinstating FTC Commissioner Slaughter stayed by High Court, (Sep 8, 2025)

By Justin Marcus Smith, J.D.

Slaughter already removed from list of current commissioners on the FTC website.

The U.S. Supreme Court has stayed an order of the district court for the District of Columbia reinstating FTC Commissioner Rebecca Kelly Slaughter. The Trump Administration had applied to the U.S. Supreme Court to stay a district court order that reinstated FTC Commissioner Slaughter as one of four present Commissioners. Slaughter filed her opposition the next day. On September 8, 2025, Chief Justice John Roberts entered a two-sentence order on the docket granting the stay of the district court’s order “pending further order of The Chief Justice or of the Court. It is further ordered that a response to the application be filed on or before Monday, September 15th, 2025, by 4 p.m. (EDT)” (Trump v. Slaughter, No. 25A264 (U.S. Sept. 5, 2025)).

Background. On March 18, Trump fired Commissioners Rebecca Kelly Slaughter and Alvaro Bedoya from the FTC. The move left the Commission with only Chairman Andrew N. Ferguson and Commissioner Melissa Holyoak—both Republicans. In litigation over the firing of FTC Commissioner Rebecca Slaughter, the federal district court in the District of Columbia granted Slaughter’s motion for summary judgment and ordered her reinstatement. The court also denied a Trump Administration motion for a stay pending appeal.

The United States Court of Appeals for the District of Columbia Circuit denied the Administration’s motion for a stay pending. The court reasoned that Humphrey’s Executor precluded any likelihood the government would prevail on the merits of its appeal. See Humphrey’s Executor v. United States, 295 U.S. 602 (1935). The court analyzed various cases in the 90 years since that have followed and did not overrule Humphrey’s Executor. The court also distinguished more recent cases pertinent to arguably more executive bodies, including the National Labor Relations Board (NLRB). The court also dissolved its July 21 administrative stay and denied the motion to expedite appeal. The Trump administration is now asking the Supreme Court to consider the dispute.

Irreparable harm. The Trump Administration brief on petition to the Supreme Court, citing Wilcox, appeared to focus on the potential for irreparable harm from orders below permitting Slaughter, a “removed” officer, to continue exercising executive power. See Trump v. Wilcox, 145 S. Ct. 1415 (2025). The brief urged the high court to consider how it had already granted emergency stays of lower-court injunctions attempting to reinstate senior executive officials. Moreover, the brief said the high court had already “rebuked” lower courts that tried to confine Wilcox and Boyle to the contexts of the National Labor Relations Board (NLRB), Merit Systems Protection Board (MSPB), and Consumer Products Safety Commission (CPSC). See Trump v. Boyle, 145 S. Ct. 2653 (2025).

The brief, citing Judge Rao’s dissent in the D.C. Circuit, characterized the instant matter as “virtually identical” to Wilcox and Boyle because the FTC exercises considerable executive power. It does so by, among other things, promulgating binding rules and even exercising “significant foreign-affairs authority.”

The brief continued that, in balancing the equities, the government faces a greater risk of harm from an order allowing a removed officer to continue exercising executive power than does the removed officer from being unable to perform her statutory duty. A stay would also be appropriate to avoid the disruption of repeated removals and reinstatements as cases climb up the ladder of appeals.

Slaughter opposition. Slaughter’s opposition brief reiterated arguments below. First among them, the attempt to terminate Slaughter without cause defied binding, on-point precedent under Humphrey’s Executor v. United States, 295 U.S. 602 (1935) and the numerous Supreme Court decisions that expressly refused to reconsider that case. The Slaughter brief argued that, in granting summary judgment, the district court found the instant facts were almost identical to those of Humphrey’s Executor.

The brief continued that the Supreme Court should not grant an administrative stay where the court below was simply following case law directly on-point. The brief also distinguished Wilcox and Boyle as having different equitable considerations with respect agency composition, hence the agencies in those cases could have taken meaningful actions contrary to the Trump agenda.

Expanding on the point, the Slaughter opposition brief was critical that the government did not specify what harm would result from Slaughter’s continued service, without an administrative stay, while the stay application is pending. Because Slaughter is the sole Democrat member on a Commission with a Republican majority, the brief distinguished the reasoning of Wilcox and Boyle by arguing that, in contrast, Slaughter has no ability to cause any regulatory action contrary to Trump Administration policy.

The brief continued that the purported failure of the government to identify any threat posed by Slaughter’s service as a minority member of the Commission “should be fatal” to the request for an administrative stay. And, for the same reasons the D.C. Circuit already explained, an administrative stay would be additionally inappropriate because the high court should also deny the underlying stay application.

As to the underlying stay application, the brief concluded that the government is not likely to succeed on the merits because Supreme Court precedent has expressly recognized the constitutionality of the removal protections under 15 U.S.C. § 41. And again, as the D.C. Circuit noted, the “equitable calculus” in this matter differs from that of Wilcox and Boyle.

The Case is No. 25A264.

Judge: NA

Attorneys: D. John Sauer, U.S. Department of Justice, for Donald J. Trump. Gregory A. Clarick (Clarick Gueron Reisbaum LLP) for Rebecca Kelly Slaughter.

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