Antitrust Law Daily Wrap Up, CONSUMER PROTECTION NEWS: Supreme Court to review rulings in Slaughter’s challenge of Trump firing, (Sep 23, 2025)

By Lynn Stanton, lynn.stanton@wolterskluwer.com

The parties were ordered to brief whether Humphrey’s Executor should be overruled and whether a federal court may prevent a person’s removal from public office.

Over the dissents of Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson, the Supreme Court on September 22, 2025, in an unsigned order granted a stay of a federal district court injunction that prevented the enforcement of President Trump’s firing of Rebecca Kelly Slaughter as a commissioner on the Federal Trade Commission and said that it would review the case, prior to a judgment by the U.S. Court of Appeals for the District of Columbia Circuit. The Justice Department, filing on behalf of the president, had also sought an immediate administrative stay of the lower court’s judgment, which Chief Justice John Roberts Jr. had granted earlier in the month pending action by the full Court, and had asked that the petition be treated as a petition for writ of certiorari “before judgment” (Trump v. Slaughter, No. 25-332 (U.S. Sept. 22, 2025)).

In the Supreme Court’s order, the Court directed the parties “to brief and argue the following 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.”

The Supreme Court had held in Humphrey’s Executor that the president did not have authority to remove a commissioner from the FTC because the agency’s powers were quasi-judicial and quasi-legislative, rather than executive, and because it was intended by Congress to be independent.

District Judge Loren Alikhan of the U.S. District Court for the District of Columbia had emphasized in her ruling that Humphrey’s Executor was still binding precedent that only the Supreme Court could overrule. In dissolving a previous administrative stay of Judge Alikhan’s ruling, the D.C. Circuit had made a similar argument about the status of Humphrey’s Executor.

In the September 22 order, the Supreme Court directed the clerk to “establish a briefing schedule that will allow the case to be argued in the December 2025 argument session.

In a dissenting opinion joined by Justices Sotomayor and Jackson, Justice Kagan wrote, “On top of granting certiorari before judgment in this case, the Court today issues a stay enabling the President to immediately discharge, without any cause, a member of the Federal Trade Commission (FTC). That stay, granted on our emergency docket, is just the latest in a series. Earlier this year, the same majority, by the same mechanism, permitted the President to fire without cause members of the National Labor Relations Board, the Merits Systems Protection Board, and the Consumer Product Safety Commission. See Trump v. Wilcox, 605 U. S. ___ (2025); Trump v. Boyle, 606 U. S. ___ (2025). Congress, as everyone agrees, prohibited each of those presidential removals.”

She continued, “Yet the majority, stay order by stay order, has handed full control of all those agencies to the President. He may now remove—so says the majority, though Congress said differently—any member he wishes, for any reason or no reason at all. And he may thereby extinguish the agencies’ bipartisanship and independence.

“I dissented from the majority’s prior stay orders, and today do so again. Under existing law, what Congress said goes—as this Court unanimously decided nearly a century ago. In Humphrey’s Executor v. United States, 295 U. S. 602 (1935), we rejected a claim of presidential prerogative identical to the one made in this case. (Indeed, the suit emerged from a discharge at the very same agency.) Congress, we held, may restrict the President’s power to remove members of the FTC, as well as other agencies performing ‘quasi-legislative or quasi-judicial’ functions, without violating the Constitution,” Justice Kagan added.

“The majority may be raring” to overturn Humphrey’s Executor, but until it does so, “Humphrey’s controls, and prevents the majority from giving the President the unlimited removal power Congress denied him. Because the majority’s stay does just that, I respectfully dissent. Our emergency docket should never be used, as it has been this year, to permit what our own precedent bars. Still more, it should not be used, as it also has been, to transfer government authority from Congress to the President, and thus to reshape the Nation’s separation of powers,” she said.

The Case is No. 25-332.

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

News: Antitrust ConsumerProtection FederalTradeCommissionNews DistrictofColumbiaNews