Trump removal of FTC commissioner Rebecca Kelly Slaughter has been temporarily allowed by the Supreme Court, a development that could reshape the balance between presidential authority and the independence of regulatory agencies. The case, set for full arguments in December, raises fundamental questions about whether long-standing protections for agency officials can still stand in today’s political and legal environment.
This article examines the background of the case, the arguments on both sides, reactions from experts, and the broader implications for executive power and independent agencies.
The Supreme Court’s Emergency Decision
In September, the Supreme Court issued an emergency order permitting President Donald Trump to remove Federal Trade Commission Commissioner Rebecca Slaughter, despite a lower court ruling that had blocked her dismissal. The Court acted through its emergency, or “shadow,” docket, allowing the removal to proceed while the justices prepare for full hearings later this year.
Slaughter, a Democratic appointee, had argued that her removal without cause violated the statutory protections established by Congress when it created the FTC. Under the FTC Act, commissioners can only be removed for inefficiency, neglect of duty, or malfeasance. Trump’s decision to dismiss her without citing such grounds triggered a legal battle that has now reached the nation’s highest court.
The Legal Foundation: Humphrey’s Executor
At the center of the dispute is the 1935 case Humphrey’s Executor v. United States. In that ruling, the Supreme Court upheld Congress’s authority to protect certain independent agency officials from at-will removal by the president. The decision was meant to ensure agencies like the FTC could operate with a degree of independence, free from short-term political influence.
For nearly ninety years, this precedent has guided how independent agencies are structured and has helped preserve their bipartisan nature. The current case may determine whether that precedent will remain intact or be overturned in favor of greater presidential control.
The Trump Administration’s Position
The Trump administration argues that the structure of independent agencies has changed dramatically since the 1930s. Modern agencies, they say, exercise sweeping executive powers, including rule-making, enforcement, and adjudication. Because these powers resemble core executive functions, the president should have greater authority to control and, when necessary, remove officials who do not align with their policies.
Supporters of the administration’s position contend that the Constitution vests executive power in the president, making restrictions on removal authority a violation of the separation of powers. They argue that a modern president cannot be held accountable for agency actions if they cannot control who serves on these bodies.
The Counterarguments from Critics
Opponents, including legal scholars and several current and former commissioners, counter that independent agencies play a critical role in safeguarding the public interest precisely because they are insulated from partisan politics. By limiting presidential control, Congress designed these agencies to ensure stability, consistency, and expertise-driven decision-making.
They argue that dismantling these protections risks turning independent commissions into partisan tools that swing dramatically with each change in administration. Consumer protection, antitrust enforcement, labor rights, and environmental regulation could all be subject to abrupt shifts, undermining trust in government institutions.
Dissent from the Court’s Liberal Justices
When the Court issued its emergency order, three justices dissented. Justice Elena Kagan, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, warned that the majority’s action undermined Congress’s explicit decision to insulate commissioners from removal without cause. They criticized the use of the emergency docket for such a significant decision, arguing that issues of this magnitude deserve full deliberation and transparency.
Their dissent emphasized that until the Court formally reconsiders Humphrey’s Executor, the law still prohibits the removal of FTC commissioners without cause. By allowing the dismissal to stand in the meantime, the Court signaled a possible willingness to overturn long-standing precedent.
Why the Case Matters
This case matters because it cuts to the heart of how U.S. governance is structured.
Impact on Agency Independence
If presidents can remove commissioners without cause, agencies may lose the independence that has allowed them to focus on technical expertise and long-term goals rather than short-term political gains.
Effects on Bipartisanship
The FTC, like many commissions, is designed to have a bipartisan structure. Allowing presidents to fire commissioners for political reasons could reduce balance and fairness in how these agencies operate.
Consumer and Market Regulation
Agencies like the FTC oversee competition, consumer protection, and corporate behavior. If commissioners fear dismissal for disagreeing with the president’s policies, enforcement decisions could shift away from protecting consumers toward aligning with political priorities.
Precedent for Other Agencies
If the Court overturns Humphrey’s Executor, the ruling could affect many other independent bodies, such as the National Labor Relations Board, the Securities and Exchange Commission, and the Federal Communications Commission.
Risks of Expanding Executive Power
Expanding presidential authority in this way raises concerns beyond just the FTC. Critics highlight several risks:
- Reduced checks and balances if presidents gain more unilateral control over key regulators.
- Greater instability as agency leadership changes frequently with each administration.
- Risk of politicization in areas where neutral, expert decision-making is most needed.
- Erosion of public trust in institutions designed to serve as nonpartisan arbiters.
What Happens Next
The Supreme Court will hear full arguments in December. The justices’ questions during those hearings will likely reveal how far they are willing to go in reconsidering or even overturning Humphrey’s Executor.
Meanwhile, Congress and advocacy groups are watching closely. Some lawmakers are already considering proposals to strengthen statutory protections for independent agencies if the Court weakens them. Advocacy groups focused on consumer rights, labor protections, and environmental safeguards have voiced alarm about the potential consequences.
Lower courts may also face challenges in interpreting the law until the Supreme Court issues its final ruling. For now, the emergency order creates uncertainty about the stability of agency leadership across the government.
Broader Context: A Shift in Executive Power
This case is part of a broader trend of expanding executive power. Over the last several decades, presidents of both parties have sought greater control over administrative agencies. Recent rulings by the Supreme Court, particularly in cases limiting the scope of agency authority, suggest the Court may be willing to reshape long-standing frameworks that define the balance between branches of government.
The Trump removal of FTC commissioner case could become a landmark in this ongoing debate. It represents more than a dispute over a single commissioner; it could redefine the role of independent agencies in American life.
Conclusion
The Supreme Court’s decision to allow Trump removal of FTC commissioner Rebecca Slaughter, even temporarily, marks a turning point in the discussion of presidential power. While a final ruling will come later, the Court has already signaled its willingness to revisit legal precedents that have shaped U.S. governance for nearly a century.
Whether the justices ultimately uphold or overturn Humphrey’s Executor, the case underscores the fragile balance between executive authority and institutional independence. The outcome could reshape how agencies function, how laws are enforced, and how power is distributed in the American political system.
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