Washington — The Supreme Court on Monday heard arguments over the president’s authority to remove members of many independent agencies that Congress has sought to insulate from political pressure, with a majority of the justices appearing open to overturning a 90-year-old decision that shields some officials from removal without cause.
The case, Trump v. Slaughter, arose from President Trump’s attempt to fire a member of the Federal Trade Commission, Rebecca Kelly Slaughter. A 1935 Supreme Court ruling known as Humphrey’s Executor upheld limits established by Congress that enabled the president to remove members of commissions like the FTC only for inefficiency, neglect of duty or malfeasance in office.
The Trump administration argues those limits violate the separation of powers. The FTC wields executive power, so the president should have the authority to fire its members for any reason, it says. Slaughter’s attorneys argue the removal protections fall within Congress’ power to determine the structure of the government, and say the administration’s position would allow the president to upend many other longstanding independent agencies and commissions that have been established by Congress.
During oral arguments at the Supreme Court on Monday, the three liberal justices defended the removal protections and warned that a decision in Mr. Trump’s favor could cause chaos across the government. The court’s conservatives, meanwhile, expressed skepticism with the argument that Congress could limit the president’s ability to remove officials from the FTC and other independent agencies, opening the door to a ruling in the administration’s favor.
Oral arguments in Trump v. Slaughter
Graeme Sloan / Bloomberg via Getty Images 
Solicitor General D. John Sauer presented the case for the administration. He urged the justices to overturn the decision in Humphrey’s Executor, saying it encroaches on the president’s removal authority under Article II of the Constitution.
“Humphrey’s must be overruled. It has become a decaying husk with bold and particularly dangerous pretensions. It was grievously wrong when it was decided,” Sauer said. “It 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.”
Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson, the court’s three liberals, were skeptical of Sauer’s argument.
“You’re asking us to destroy the structure of government and to take away from Congress its ability to protect its idea that the government is better structured with some agencies that are independent,” Sotomayor said.
She warned that a decision invalidating removal limits for members of the FTC could also put at risk the independence of other federal entities, such as the U.S. Tax Court and broader protections for the civil service. Slaughter’s lawyers have warned that a ruling expanding presidential power over multi-member agencies could undermine the independence of the Federal Reserve, though the Supreme Court has indicated that it views the central bank differently.
Kagan zeroed in on the impacts of a decision overturning Humphrey’s Executor, raising the prospect that a ruling striking down the precedent could be used to target protections for officials across the government: “The question is, where does this lead? Where does it take you to, given what your primary rationale is? Employees are wielding executive power all over the place, and yet we’ve had civil service laws that give them substantial protection from removal for over a century … Logic has consequences. Once you use a particular kind of argument to justify one thing, you can’t turn your back on that kind of argument if it also justifies another thing in the exact same way.”
She noted that independent agencies also wield legislative and judicial powers and warned that expanding the president’s control over them would put “massive uncontrolled, unchecked power in the hands of the president” and leave the nation with a leader who then has “control over everything, including over much of the lawmaking in this country.”
Jackson said that Sauer is “asking us to infer” that the removal protections are unconstitutional based on the structure of the Constitution, “and I don’t know why we’d make that inference when the power to create agencies and set everything up lies with Congress.”
The court’s conservatives were more receptive to the Trump administration’s arguments.
“I think broad delegations to unaccountable independent agencies raise enormous constitutional and real-world problems for individual liberty,” Justice Brett Kavanaugh said.
Justice Neil Gorsuch acknowledged that “a lot of legislative power has moved into these agencies,” but said that “if they’re now going to be controlled by the president, it seems to me all the more imperative to do something about it.”
Attorney Amit Agarwal presented Slaughter’s case, and argued that the removal protections have a long tradition in American history. He said that Congress has a role in limiting how officials on independent commissions like the FTC can be removed.
“Multi-member commissions with members enjoying some kind of removal protection have been part of our story since 1790. So if petitioners are right, all three branches of government have been wrong from the start,” Agarwal said.
Kavanaugh and Justice Clarence Thomas tested the boundaries of Agarwal’s position, asking him whether Congress could transform Cabinet-level executive departments into multi-member commissions and limit the president’s ability to fire their leaders. Agarwal said the Constitution would largely prohibit such a move, since Congress cannot limit the president’s authority over officials who are wielding his “conclusive and preclusive” powers, which would apply to most departments.
Justice Samuel Alito was similarly skeptical of Agarwal’s argument, saying that “I don’t know that you can make the argument that the logic of [Sauer’s] argument is going to cause these allegedly revolutionary results without being prepared to explain more concretely than you have the limits of your own argument.”
Agarwal added later: “We have a 111-year-old statute that was enacted by the people’s elected representatives. It was signed into law by a president of the United States. It was unanimously affirmed by this court. And it’s been followed by every single president since 1935 until the present. We don’t need an abstract theory to tell us that the FTC Act is OK. It’s the other side that needs to give you a really compelling theory to explain why, in our view, 200-plus years of precedent and history need to be abandoned.”
Gorsuch continued to probe Agarwal’s position, hinting that he thought the line Agarwal was trying to draw to limit the president’s power to remove officials was unwieldy: “How are we supposed to decide which powers are exclusive? … What powers are going to fall in and what are going to fall out? Are we going to have just as much litigation over that as anything else we might do in this case?”
The background of Trump v. Slaughter
The case is the culmination of a yearslong weakening of that New Deal-era ruling in the case Humphrey’s Executor v. United States. In a string of recent decisions, the Supreme Court’s conservative justices have chipped away at that precedent. Most recently, the high court invalidated removal protections for leaders of the Consumer Financial Protection Bureau in 2020 and the Federal Housing Finance Agency in 2021.
But the Slaughter case now gives the Supreme Court the opportunity to overturn that 90-year-old precedent entirely.
Since he returned to the White House for a second term, Mr. Trump has pushed the bounds of presidential power and moved to oust a host of Democratic-appointed members of independent boards and commissions, including Slaughter.
Appointed to the FTC by Mr. Trump in his first term and reappointed by former President Joe Biden, Slaughter received an email in March with a message from the president informing her that her “continued service on the FTC is inconsistent with my Administration’s priorities.”
Slaughter, like many other agency leaders fired by Mr. Trump, filed a lawsuit arguing that her firing was illegal. When Congress established the FTC in 1914, it said commissioners could be removed only for inefficiency, neglect of duty or malfeasance in office. Her lawyers argue that Mr. Trump violated that law and Supreme Court precedent with the firing of Slaughter and a second commissioner, Alvaro M. Bedoya.
A federal district court sided with Slaughter and ordered her to be reinstated to her job at the FTC. But soon after, the U.S. Court of Appeals for the District of Columbia Circuit issued a temporary order allowing her removal. Weeks later, the appeals court said Slaughter should be reinstated to her role at the FTC once again.
The Supreme Court agreed in late September to hear the case and allowed Mr. Trump to fire Slaughter while it considers the constitutionality of removal protections for members of the FTC.
The Trump administration argued in filings that the Constitution vests all executive power in the president and therefore grants him “illimitable” authority over officers who wield that power on his behalf. Removal protections for members of independent agencies leave the president “saddled with subordinate officers” who prevent him from ensuring that the laws are faithfully executed, Sauer wrote.
While Congress’ power to structure the executive branch allows it to establish and organize departments under the president, it does not allow lawmakers “to establish a Fourth Branch that siphons executive power away from the chief executive’s control,” Sauer wrote.
Congress has created more than two dozen independent agencies with removal protections that seek to shield their members from political pressure.
In its 1935 decision in Humphrey’s Executor, the Supreme Court recognized an exception to the president’s removal power and said Congress could impose removal restrictions for multimember agencies with quasi-legislative or quasi-judicial powers, like the FTC.
But the Trump administration argued that since 1935, the FTC has accumulated executive powers. Today, the commission executes more than 80 federal laws and regulates a broad range of matters, from meat products to contact lenses to credit cards, Sauer wrote in his filing.
More than 200 Democrats in Congress argued that multimember boards that are protected from at-will removal represent a longstanding compromise between the legislative and executive branches that should not be upset by the judicial branch. They wrote in a friend-of-the-court brief that over the past 100 years, 15 different presidents from both parties have signed bills into law that created independent agencies.
Still, Mr. Trump has already seen some success at the Supreme Court in his bid to assert more control over these bodies. The high court’s conservative majority has allowed the president to fire members of the National Labor Relations Board, Merit Systems Protection Board and Consumer Product Safety Commission without cause while legal challenges to their removals moved forward.
The president has also attempted to fire a member of the Federal Reserve Board of Governors, Lisa Cook. But the Supreme Court has so far allowed her to remain in her role, and the justices will hear arguments in that case next month.