WASHINGTON, D.C. — Today, attorneys for Federal Trade Commissioner Rebecca Kelly Slaughter filed a Supreme Court brief on the merits of the case in Trump v. Slaughter.

In March, President Trump attempted to remove Commissioner Slaughter from the FTC without legal cause. Commissioner Slaughter challenged the Trump administration in federal court, citing removal protections established in the FTC Act and upheld by the Supreme Court’s landmark 1935 decision in Humphrey’s Executor v. United States. The district court ruled in Commissioner Slaughter’s favor, finding President Trump’s attempt to fire her unlawful. The D.C. Circuit declined to stay that decision, but the Supreme Court later issued a stay pending appeal and also granted certiorari before judgment, which means the high Court will hear the case without waiting for a merits decision from the D.C. Circuit Court of Appeals.

The Supreme Court is slated to hear oral arguments on the merits on December 8, 2025. The brief filed today warns that a ruling in President Trump’s favor would overturn 200+ years of consensus that Congress can create multimember independent agencies and would fundamentally reshape how the government has operated–and how the Constitution has been understood–for centuries.

Here are five key arguments from the brief:

1. There is a long history and tradition—dating back to the early Republic—of creating independent agencies with members insulated from at-will Presidential removal. As detailed in Commissioner Slaughter’s Supreme Court brief, “Multimember independent agencies are deeply ingrained in our Nation’s history and tradition, from the First Congress to the present day.” As early as 1790, Congress created multimember bodies that included officials the President could not remove at will. As historical scholarship demonstrates, these founding-era independent bodies served as early precedents for the creation of modern-day politically-insulated agencies like the Federal Reserve and the FTC. The historical evidence recounted in the brief is further reinforced by recent “bombshell” scholarship by Professor Caleb Nelson, one of the country’s leading originalist legal scholars, who concludes that the Founders would have been skeptical of President Trump’s claim of limitless authority to fire agency heads in violation of statutory removal protections. 
2. Throwing out 90 years of precedent would be a radical move for the Supreme Court—and at a pivotal moment where the President is already abusing the limits of executive power. Humphrey’s Executor was decided by a unanimous Supreme Court, and has been the law of the land since 1935. For nearly a hundred years, all three branches of Government — Congress, the President, and the courts — have used this foundational precedent to structure how our government functions. As the brief explains, “Overruling a century of precedent at this late date … would profoundly destabilize institutions that are now inextricably intertwined with the fabric of American governance.” 
3. Overturning Humphrey’s Executor and FTC independence would threaten the independence of the Federal Reserve and dozens of other agencies. Both Congress and the President have relied on Humphrey’s Executor in creating more than two dozen other independent agencies, including the Federal Reserve. Critically, President Trump’s SCOTUS brief concedes that members of the Federal Reserve may not be removed at will because of the Federal Reserve’s history. But “[t]hat concession to history” is “fatal” to the argument that the Constitution forbids all independent agencies, because the FTC, just like the Fed, is also “part of a lengthy historical tradition of multimember regulatory bodies whose members can be granted statutory for-cause removal protections.” 
4. Congress has endowed independent agencies with significant power to regulate important and sensitive issues and industries — and it intentionally did not give that power to the President alone. As the brief explains, “Congress structured dozens of administrative agencies in reliance on the rule of Humphrey’s Executor, assigning the Executive Branch power that it otherwise might never have conveyed” if the President could remove agency officials at will. Indeed, when it endowed multimember agencies with specific powers, “Congress acted on the understanding that those agencies would be insulated from political pressures and would not be under the control of one individual.” In other words, overturning Humphrey’s Executor and handing the reins of these carefully-structured agencies directly to the President would amount to a significant and direct transfer of power to the President—even though the people’s elected representatives in Congress gave statutory powers to those agencies on the understanding they would remain independent.
5. The political branches have spoken: For centuries, presidents of both political parties have worked hand-in-hand with Congress to create and empower these agencies. The brief explains how “presidents have not merely acquiesced in the centuries-old congressional practice of creating multimember commissions. They have signed into law numerous bills creating, funding, and empowering ‘some two-dozen multimember independent agencies. … Presidents have even proposed the creation of agencies with for-cause-removal protections.’’ The Supreme Court has likewise blessed such agencies. Have all three branches of the federal government labored in error for nearly all of American history? No: History demonstrates a clear and collective understanding that the Constitution permits independent multimember regulatory commissions.

###

About Protect Democracy

Protect Democracy is a nonpartisan, nonprofit group working to prevent American democracy from declining into a more authoritarian form of government. Find out more at protectdemocracy.org. 

About Clarick Gueron Reisbaum LLP

Founded in 2010, Clarick Gueron Reisbaum LLP has represented a broad range of clients in a variety of complex commercial litigations and disputes, including matters concerning corporate governance, copyrights and trademarks, securities, restrictive covenant and employment issues, post-merger and acquisition obligations, art fraud and art ownership, and complex loan payouts and financial instruments. CGR also handles internal and government investigations, and represents government agencies and elected officials in high-profile matters. 

Larry Schwartztol is Professor of Practice at Harvard Law School, where he is the faculty director of the Democracy and Rule of Law Clinic.

Clients partner with Cooley LLP on transformative deals, complex IP and regulatory matters, and high-stakes litigation. Cooley has nearly 1,400 lawyers across 19 offices in the United States, Asia and Europe, and a total workforce of more than 3,000 people.