SCOTUS Clears Way for Termination of FTC Commissioner

The U.S. Supreme Court’s emergency order in Trump v. Slaughter, 606 U.S. ____ (2025), allows President Trump to fire FTC Commissioner while litigation over her termination continues. The Court also agreed to consider the case on the merits later this year.

Facts of the Case

In March 2025, President Donald Trump removed Commissioner RebeccaSlaughter from the Federal Trade Commission (FTC). Slaughter filed a lawsuit challenging the action, citing the Supreme Court’s decision in Humphrey’s Executor v. United States, 295 U.S. 602 (1935).

In Humphrey’s Executor, the Supreme Court unanimously held that the Federal Trade Commission Act does not violate Article II by limiting the President’s power to remove Commissioners except for cause. According to the Court, it is “plain under the Constitution that illimitable power of removal is not possessed by the President in respect of officers” wielding power of what it then termed a “quasi-judicial” or “quasi-legislative” “character.” The Court further concluded “that no removal can be made during the prescribed term for which the [Commissioner] is appointed, except for one or more of the causes named in the applicable statute.”

Lower Court Decision

U.S. District Judge Loren AliKhan ordered the Trump Administration to reinstate Slaughter, relying on the Supreme Court’s decision in Humphrey’s Executor.

A divided panel of the D.C. Circuit Court of Appeals refused to stay the district court order, concluding that the government had no likelihood of success on appeal given “controlling and directly on point” Supreme Court precedent. “Humphrey’s Executor controls this case and binds this court,” the appeals court wrote. “And recent developments on the Supreme Court’s emergency docket do not permit this court to do the Supreme Court’s job of reconsidering that precedent.”

Supreme Court Ruling

In a brief, unsigned order, the Supreme Court granted the application for stay. Additionally. the Court elected to treat the application as a petition for a writ of certiorari before judgment, which it granted.

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; and (2) Whether a federal court may prevent a person’s removal from public office, either through relief at equity or at law.

Oral arguments will be held during the Court’s December session.

Dissent

Justice Elena Kagan authored a dissenting opinion, which was joined by Justices Sonia Sotomayor and Ketanji Brown Jackson. As in similar cases, the Court’s liberal justices criticized the use of the Court’s emergency docket to depart from existing precedent, in this case Humphrey’s Executor. Justice Kagan wrote:

Under the relevant statutes, the entities just listed are “classic independent agenc[ies]”—“‘multi-member, bipartisan commission[s]’ whose members serve staggered terms and cannot be removed except for good reason.” 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.
Justice Kagan also lamented the use of the emergency docket “to transfer government authority from Congress to the president, and thus to re-shape the nation’s separation of powers.”