Labor & Employment Law Daily Wrap Up, SUPREME COURT NEWS—Divided Court signals high likelihood of overruling ‘Humphrey’s Executor’, (Dec 9, 2025)

By Jason Albright, J.D.

“[O]ne thing Seila Law made pretty clear, I think,” said Chief Justice Roberts, “is that Humphrey's Executor is just a dried husk of whatever people used to think it was…”

The U.S. Supreme Court heard oral argument Monday in Trump v. Slaughter, a case concerning the reach of the President’s power to remove heads of independent federal agencies, implicating the future viability of the Court’s 90-year-old precedent in Humphrey's Executor v. United States, 295 U.S. 602 (1935). Although the Supreme Court’s three left-leaning Justices voiced concerns about both stare decisis and potential incursions on the power of Congress to establish and reign in independent agencies such as the FTC, the remainder of the Court appeared very likely to find that statutory removal protections for members of the FTC—and, by implication, boards of several other similarly structured federal agencies—unconstitutionally trench on the President’s executive authority.

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

Slaughter’s lawsuit under FTC Act. Slaughter sued the President, the FTC Chair, and others under the FTC Act, pointing specifically to 15 U.S.C. § 41, which provides that the President may remove FTC commissioners only for “inefficiency, neglect of duty, or malfeasance in office.”

District court’s stay. In July, a federal district court granted summary judgment in Slaughter’s favor, finding her firing unlawful. The district court concluded that the provisions of the Federal Trade Commission Act on the removal of FTC Commissioners were clear and held that it was “patently obvious” that Humphrey’s Executor controlled.

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

Chief Justice intervenes. On September 8, 2025, however, Chief Justice Roberts stayed the July order of the district court pending appeal. The Court then construed the administration’s application for a stay as a petition for certiorari and agreed to hear the case.

Questions presented. The Court directed the parties 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 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.

Petitioners’ argument. Appearing for the President and other petitioners, Solicitor General D. John Sauer argued that, in Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. 197 (2020), the Supreme Court held that the President's power to remove, and thus to supervise, those who wield executive power on his behalf follows from the text of Article II, was settled by the First Congress, and has been confirmed by precedent, including at least nine decisions of the Supreme Court. Humphrey's Executor, he said, “stands as an indefensible outlier from that line of authority. Its holding that federal agencies can exercise quasi-legislative and quasi-judicial powers that form no part of the executive power has not withstood the test of time.”

Urging that Humphrey's Executor must be overruled, Sauer described the case as a “decaying husk with bold and particularly dangerous pretensions.” It was “grievously wrong when decided” and has been “thoroughly eroded” by subsequent case law. And though the Court has “repudiated Humphrey's reasoning and confined it to its facts,” Sauer urged, the case “continues to generate confusion in the lower courts and it continues to tempt Congress to erect at the heart of our government a headless fourth branch insulated from political accountability and democratic control.”

Referring to Justice Thomas’s concurrence in Seila Law, Sauer asserted, “Humphrey's poses a direct threat to our constitutional structure and, as a result, the liberty of the American people. And as Seila Law held, the modern expansion of the federal bureaucracy sharpens the Court's duty to ensure that the executive branch is overseen by a President accountable to the people.”

Slaughter’s argument. Appearing for Rebecca Slaughter and other respondents, Amit Agarwal argued that multi-member commissions with members enjoying some kind of removal protection have been “part of our story since 1790,” and that “any abstract theory that would wipe away so much history and precedent should be a non-starter.”

“At a minimum,’ asserted Agarwal, “Petitioners would need an air-tight theory to justify the radical change that they now seek. And they don't have one. No tool of interpretation clearly supports the President's assertion of an unrestricted and indefeasible authority to fire the heads of traditional independent agencies like the Federal Elections Commission and the Nuclear Regulatory Commission.”

Finally, according to Agarwal, “stare decisis militates against overruling a century of precedent at this late date. The political branches are more than up to the task of finding reasonable legislative solutions that strike an appropriate balance.”

Justice Sotomayor and arguments on the Court’s “left.” Justice Sotomayor began the main substantive interrogation of Sauer’s argument by asking, “This Court even in Seila Law and all of the cases you've mentioned since have said that that Humphrey's is good -- is controlling law. You're asking us to overturn a case that has been around for over a hundred -- nearly a hundred years, correct?”

Sauer clarified that Humphrey’s Executor had been around for 90 years and noted, among other things, that “Erie overruled Swift v. Tyson 96 years later.”

Sauer went on to describe Humphrey’s Executor as a “distortion of the structure of government,” to which Justice Sotomayor replied, “aren't you asking us to distort it a different way?... Neither the King nor parliament nor prime ministers, England at the time of the founding, ever had a unqualified removal power.”

What about Congress? Justice Jackson further probed Sauer: “I'm trying to understand why you think that Congress is somehow less democratically accountable for the way in which it constructs these agencies and determines the term of office of the officers? You -- you seem to -- to think that -­- that there's something about the President that requires him to control everything as a matter of democratic accountability when, on the other side, we have Congress saying we'd like these particular agencies and officers to be independent of presidential control for the good of the people.”

Sauer responded that Congress “has a broad authority in structuring the federal government, but what it lacks authority to do is to create these headless agencies, agencies who have no boss and are not answerable to the voters.”

Jackson remained unpersuaded: “[T]he Constitution does not say that Congress cannot create an independent agency.”

Justice Kagan and legislative and adjudicatory powers. Justice Kagan, for her part, observed, “Some people think it's a real distortion from what the founders thought, but these, what you think of as executive branch agencies, including independent agencies, right, they do a lot of legislating and they do a lot of judging… And -- and isn't it problematic, given what we know about the founders' vision, that what this is going to amount to at the end of the day is putting not only all executive power in the President but an incredible amount of legislative/rulemaking power and judging in the President's hands?”

Later, drawing out that point in a dry exchange with Agarwal, Kagan observed, “if you go back to let's say the Education Department… the more realistic danger here is that we'll have an Education Department as authorized by Congress, by law, that won't have any employees in it.”

Another desiccated “husk.” The majority of the Justices, however, appeared largely persuaded by Sauer’s position, and the Chief crystallized that emerging view when, echoing Sauer’s argument—and, indeed, his own fatal prior words in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024)—Roberts observed, “[T]he one thing Seila Law made pretty clear, I think, is that Humphrey's Executor is just a dried husk of whatever people used to think it was because, in the opinion itself, it described the powers of the agency it was talking about, and they're vanishingly insignificant, have nothing to do with what the FTC looks like today.”

Justice Gorsuch’s “cards on the table.” Later, Justice Gorsuch drove the point home in his own colloquy with Agarwal about whether the President has “a duty to faithfully execute all the laws”—to which Agarwal could not commit: “I'll put my cards on the table -- ­maybe it's a recognition that Humphrey's Executor was poorly reasoned and that there is no such thing in our constitutional order as a fourth branch of government that's quasi-judicial and quasi-legislative. Maybe you're trying to back-fill it with a better new theory that itself recognizes that we've got a problem.”

The petition is No. 25-332.

Attorneys: D. John Sauer, Solicitor General, U.S. Department of Justice, for Donald J. Trump, et al. Amit Agarwal for Rebecca Kelly Slaughter, et al.

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