We have been following the cases that address the president’s control over the executive branch under Article II of the Constitution. By statute, Congress has tried to limit the president’s powers, most notably by establishing “independent” agencies that are not fully under the president’s control. The constitutionality of such agencies has always been doubtful, but in Humphrey’s Executor v. United States, 295 U. S. 602 (1935), the Court upheld the law that said the president can remove a commissioner of the Federal Trade Commission only for cause. More recent cases have narrowed the scope of that ruling, and many observers have doubted the ongoing vitality of Humphrey’s Executor.
Now the Supreme Court has taken up that issue directly. Rebecca Slaughter is, or was, an FTC Commissioner whom President Trump discharged. She sued, and the district court in Washington issued an order purporting to bar Trump from carrying out her firing, and keeping Slaughter in place.
Yesterday the Supreme Court issued an order in the case. The order grants the president’s application for a stay of the district court’s order, which means that Slaughter’s termination can proceed. The order goes on to grant certiorari and direct the parties to brief, on an expedited basis, the potential overturning of Humphrey’s Executor:
The application for stay presented to THE CHIEF JUSTICE and by him referred to the Court is granted. The July 17, 2025 order of the United States District Court for the District of Columbia, No. 25–cv–909, ECF Doc. 52, is stayed. The application is also treated as a petition for a writ of certiorari before judgment, and the petition is granted. The parties are directed 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. (2) Whether a federal court may prevent a person’s removal from public office, either through relief at equity or at law.
Liberal justices Kagan, Sotomayor and Jackson dissented from the Court’s granting of a stay.
This is truly momentous: the issue is vital to the power of what has become known as the administrative state. The “independent” agencies, supposedly staffed by experts, are largely unaccountable and have become a fourth branch of government that is nowhere contemplated in the Constitution. Under Article II, “The executive Power shall be vested in a President of the United States of America.” Period. Under the most plain reading of Article II, any attempt by Congress to establish an executive agency outside of the control of the President should fail.
Will that be the result in this case? I think so. The three liberal justices will of course vote for the administrative state. But I would be surprised if the other six–or at least five of them–don’t agree that Article II means what it says.
I should add that the second issue identified by the Court seems even broader: whether the courts can, in any circumstance, prevent the firing of a public official. The scope of the federal courts’ equitable powers is another issue that has surfaced in recent years, and the issue is somewhat arcane because it turns on the equitable powers that were being exercised as of the time of the adoption of the Constitution.
