Labor & Employment Law Daily Wrap Up, PUBLIC EMPLOYEES—U.S.: High Court affirms stay of order granting reinstatement of FTC Commissioner, (Sep 23, 2025)

By Ronald Miller, J.D.

The district court had held that Humphrey’s Executor v. United States, in which the U.S. Supreme Court upheld the FTC Act’s for-cause removal protections, controlled.

The U.S. Supreme Court, on an application for stay by the Trump Administration of a district court order reinstating an FTC Commissioner, and referred to the Court by Chief Justice John Roberts, was granted. The parties were directed 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; and (2) whether a federal court may prevent a person’s removal from public office, either through relief at equity or at law. Justice Kagan dissented from grant of the application for a stay, joined by Justices Sotomayor and Jackson (Trump v. Slaughter, No. 25-332 (U.S. Sept. 22, 2025)).

Removal of FTC Commissioner. In March 2025, Federal Trade Commission Commissioner Rebecca Kelly Slaughter, a Democrat originally nominated to the FTC by President Trump in 2018, received an email from the Deputy Director of Presidential Personnel purportedly removing her from her position. Shortly thereafter, she was unable to access her work emails, government servers, and digital files. She was also denied access to FTC offices and members of her staff were placed on administrative leave or reassigned to other positions within the FTC.

Commissioner granted stay. On July 17, 2025, a federal district court granted summary judgment in favor of Slaughter, finding her firing unlawful. The district court concluded that the provisions of the Federal Trade Commission Act on the removal of FTC Commissioners is clear and held that it was “patently obvious” that Humphrey’s Executor v. United States, 295 U.S. 602 (1935), in which the U.S. Supreme Court upheld the FTC Act’s for-cause removal protections, controlled.

Decision upheld. Thereafter, the D.C. Circuit ruled that the Trump Administration was not entitled to a stay pending appeal of the district court order reinstating Slaughter to the FTC. The appeals court concluded that President Trump’s firing of Slaughter was without cause.

Chief Justice intervenes. On September 8, 2025, Chief Justice John Roberts signed an order that stayed the July 17, 2025, order of the district court pending further order of Roberts or the Supreme Court.

Court grants stay. Presently, with respect to the Trump Administration’s application for stay, which was referred by Chief Justice Roberts to the Court, the stay was granted. The parties were directed to brief and argue the following ques­tions: (1) whether the statutory removal protections for members of the FTC violate the sep­aration of powers and, if so, whether Humphrey’s Executor v. United States, should be overruled; and (2) whether a federal court may prevent a person’s removal from public office, either through relief at equity or at law.

Dissent. In a dissent, Justice Kagan observed that by issuing the stay, the Court enabled the President to immediately discharge, without any cause, a member of the FTC. That stay is just the latest that the same majority has given the President, effectively granting him permission to fire without cause members of the National Labor Relations Board, the Merits Systems Pro­tection Board, and the Consumer Product Safety Commis­sion. Kagan pointed out that Humphrey’s Executor held that Congress 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. Accordingly, Humphrey’s prevents the majority from giving the President the unlimited removal power Congress denied him. Thus, Kagan dissented on the basis that the Court’s emergency docket should never be used to permit what the Court’s own precedent bars.

The case is No. 25-332.

Judge: Roberts, J.

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

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