I talked about this case last September. See prior blog post here. Humphrey’s Executor v. United States, 295 U.S. 602 (1935) was decided 90 years ago. It stands for the proposition that the board members of some Federal agencies can be removed only for cause. The Humphrey’s decision specifically found that some governmental functions should be beyond politics. Pointing to the legislative history behind the act that created the Federal Trade Commission, the 1935 Supreme Court said:
“The commission is to be non-partisan; and it must, from the very nature of its duties, act with entire impartiality. It is charged with the enforcement of no policy except the policy of the law. Its duties are neither political nor executive, but predominantly quasi-judicial and quasi-legislative. Like the Interstate Commerce Commission, its members are called upon to exercise the trained judgment of a body of experts “appointed by law and informed by experience.”
Humphrey’s, at 624. The duties of the FTC have not changed appreciably since 1935. Yet, the 2026 U.S. Supreme Court chose to overrule Humphrey’s and allow Pres. Trump to fire two members of the FTC board. In Trump v. Slaughter, No. 25-332 (June 29, 2026), the Supreme Court claimed the duties of the FTC have changed, but offered no specific examples. It claimed various decisions of the Supreme Court have noted since 1935 that the duties of the FTC are largely executive and not quasi-judicial or quasi-legislative. For example, the Trump v. Slaughter decision asserted that the Supreme Court noted in a 1983 decision that when an agency exercises “legislatively delegated authority” to regulate private conduct, it exercises “[e]xecutive power.” It cited the case of INS v. Chadha, 462 U.S. 919, 953 n. 16 (1983). But, that quote does not appear in note 16 or anywhere else, at least not as it is stated. Such a clear test ought to be stated clearly. But, that test as stated, does not appear in the Chadha decision.
Removed from Politics
As the dissent points out, quasi-independent agencies have existed since soon after the founding of this country. The concept that the heads of some agencies should be immune from capricious termination by the President and that some enforcement functions should be removed from politics is not new. The dissent cited examples throughout the 19th century. It also noted the many occasions when Humphrey’s Executor was affirmed by the Supreme Court. Indeed, removal for cause is just not a major obstacle to Presidential power. It is not hard to document actual job performance problems.
Indeed, in another case decided the same day, the Supreme Court affirmed that the President may not fire a member of the board for the Federal Reserve. As it stands, these formerly semi-independent agencies, the Equal Employment Opportunity Commission, the Federal Trade Commission, the National Labor Relations Board, the Merit Systems Protection Board, and others, have always seen changes when a new President assumes power. Now, with the decision in Trump v. Slaughter, those changes will swing even more broadly. The current Supreme Court has shown a remarkable disdain for precedent. I expect these changes will not last and that Congress will find a way to get around these decisions. Most employees and perhaps all employers will find major changes every time a new President is sworn into office to be very frustrating.
See the decision in Trump v. Slaughter, No. 25-332 (June 29, 2026) here.