The Future of Independent Agencies Like FTC at Risk Before Supreme Court

WASHINGTON, Dec. 8, 2025 — The Supreme Court heard oral arguments Monday in a case that could reshape how presidents control independent agencies, with several justices signaling openness to allowing the at-will removal of commissioners.

In taking Trump v. Slaughter, the court is examined whether the President can remove officials at independent agencies without cause. The dispute focused on the Federal Trade Commission, which enforces consumer protection and antitrust laws. 

The Trump administration has asked the high court to revisit Humphrey’s Executor (1935), the ruling that upheld for-cause limits on removing FTC commissioners.

The administration’s case for presidential power

Solicitor General John Sauer centered his argument on the unitary executive theory, a conservative legal doctrine that burgeoned to prominence in the 1980s. The theory insists that the President must have comprehensive control over all executive branch officials to fulfill Constitutional duties. 

Sauer said Humphrey's Executor should be overruled because it prevents the President from directing agencies that exercise executive power.

Justice Elena Kagan invoked the slippery slope problem: If the Court strikes down removal protections for the FTC, she asked, what prevents it from striking them down for every other independent agency?

She noted that agencies like the FTC hold quasi-legislative and quasi-executive powers through rulemaking and adjudication. If the President can remove FTC commissioners at will, he can coerce the agency to adopt rules he prefers. 

It might even give the President the power to make binding legislation without going through Congress, which she said violates the constitutional requirement under Article I that Congress make the laws.

Congressional intent and historical concerns

Justice Sonia Sotomayor questioned why the Court should discard a 90-year precedent. She noted that even English monarchs and Parliament had rid themselves of unconditional removal power.

She asked why Congress would narrow an agency’s independence instead of abolishing the agency altogether. Creating commissions with removal protections and bipartisanship, she said, showed that those limits reflected legislative intent and necessity.

Justice Ketanji Brown Jackson noted that the Constitution does not address removal power, she said, meaning Sauer’s argument relied on inference. She inquired if the question at hand was that the President was more democratically accountable, and that Congress wasn’t any less accountable as the “people’s representatives”  by establishing agencies independent of the President.

Jackson also noted that Congress had amended the FTC Act several times over a ninety-year period and that all Presidents had signed those revisions into law. If Presidents opposed removal protections, she asked, why had none of them vetoed those statutes?

Justice Brett Kavanaugh raised the Federal Reserve as a challenge to Sauer’s theory. The Fed sets monetary policy and carries out executive functions yet has operated outside presidential control for more than a century. 

Sauer tried to distinguish it as quasi-private, noting its mixed public-private structure and components that are explicitly corporations under law.

Impact upon a Democratic commissioner 

The case carried immediate stakes for the Federal Trade Commission. President Donald Trump removed Democratic commissioners Rebecca Kelly Slaughter and Alvaro Bedoya, leaving the five-member agency without its Democratic-appointed members. 

Slaughter had pushed aggressive antitrust cases against large technology platforms, while Bedoya focused on biometric tracking and children’s data practices.

The administration cited the Supreme Court’s 2020 Seila Law precedent, which struck down removal limits for the Consumer Financial Protection Bureau director, to justify the dismissals.

The challenge extended beyond the FTC. The administration also targeted removal protections at the National Labor Relations Board, Merit Systems Protection Board, Nuclear Regulatory Commission, Commission on Civil Rights, Sentencing Commission, Occupational Safety and Health Review Commission, and Consumer Product Safety Commission. The filings reflected a broader bid to roll back independence across multi-member commissions.

Amit Agarwal, an attorney at Protect Democracy, representing Slaughter, said the President’s duty to execute the laws did not permit ignoring statutory limits. He noted that multi-member commissions with for-cause removal protections had existed since 1790.

He explained that “cause” is defined narrowly in agency statutes. At the FTC, commissioners may be removed only for neglect of duty or malfeasance, not for policy disagreements or refusal to end an investigation involving a political ally.

Agarwal said no Supreme Court decision in more than 200 years had struck down protections of this type.

Justice Clarence Thomas asked why, if multi-member commissions with for-cause protections are constitutionally permissible, Congress could not restructure cabinet-level agencies – such as the Department of Justice or Department of Defense – as independent commissions insulated from presidential removal. 

This question probed whether accepting Agarwal's argument would open the door to Congress systematically dismantling the unitary executive function by converting core executive matters  into independent commissions beyond presidential control.

Stare decisis and broader implications

Kavanaugh underscored the importance of a strong, unified executive branch, raising concerns that if the FTC dramatically shifted direction with each new administration, enforcement becomes incoherent and undermines the President's ability to "take care that the laws be faithfully executed." 

Justice Neil Gorsuch suggested that diffuse, insulated power can threaten individual liberty when voters cannot identify or remove the real decision makers. His questions implied that while Congress may create expert bodies and fixed terms, it cannot strip the President of the practical ability to direct and remove those who exercise core executive power.

Agarwal pointed to the Federal Communications Commission, which regulates broadcast and telecom markets, and warned of risks to speech and press if its commissioners could be removed at will. 

He said a President could dismiss a commissioner who refused to approve a merger benefiting a political ally, without offering any justification.

He added that the administration’s theory would allow Presidents to retroactively strip removal protections from commissioners and unsettle dozens of independent agencies created over two centuries.