On Monday, the Supreme Court will hear oral argument in Trump v. Slaughter — a case that at its simplest level concerns whether the president had the power to fire Rebecca Slaughter, a member of the Federal Trade Commission. The case, however, actually presents a much more profound issue concerning separation of powers and executive authority under Article II, and whether the Supreme Court should reverse the near century-old precedent of Humphrey’s Executor.
Starting, though, at the simplest level: In March of 2025, President Trump notified Slaughter that he had removed her “from the Federal Trade Commission, effective immediately,” because her “continued service on the FTC is inconsistent with [the President’s] Administration’s priorities.” Slaughter, whose term as an FTC Commissioner was not set to expire until 2029, filed suit against Trump, alleging the president could not fire her without cause.
Here, Slaughter stressed that Congress, by statute, limited the president’s authority to remove commissioners to cases of “inefficiency, neglect of duty, or malfeasance in office.” Because Trump did not claim she had been inefficient, neglectful, or malfeasant in office, Slaughter maintained that Trump lacked the power to fire her.
The district court agreed and entered an injunction ordering Ms. Slaughter’s reinstatement. The Trump Administration sought a stay of the injunction from both the district court and the federal D.C. Circuit Court of Appeals, but both courts denied the request, leaving the injunction in place and Ms. Slaughter on the FTC.
The Trump Administration then sought a stay from the Supreme Court and also asked the high court to hear the appeal immediately. The Supreme Court granted both requests, keeping Slaughter off the FTC pending resolution by the high court. The Supreme Court then directed the parties to brief two 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.”
Monday’s argument before the Supreme Court will most like focus heavily on the first question because, if the president has the authority to remove Slaughter, there is no need for the justices to decide whether courts have the power to order the reinstatement of an official.
On the first question, the issue for the court is whether Congress can, by statute, restrict the president’s power to remove a member of the FTC or whether, instead, such a statute is unconstitutional because it violates separation of powers. Relatedly, the Court will consider whether to overrule its 1935 decision in Humphrey’s Executor.
In Humphrey’s Executor, the Supreme Court held that Congress could restrict the president’s power to remove FTC commissioners because they “occupied no place in the executive department and … exercised no part of the executive power vested by the Constitution in the President.” 295 U.S. at 628. In reaching this conclusion, the Supreme Court described the FTC as “an administrative body created by Congress to carry into effect legislative policies embodied in the statute in accordance with the legislative standard therein prescribed, and to perform other specified duties as a legislative or as a judicial aid.” 295 U.S. at 628. In fact, the Court cast the FTC as “act[ing] in part quasi legislatively and in part quasi judicially,” explaining that along with the power to create such agencies, came Congress’s “power to fix the period during which they shall continue, and to forbid their removal except for cause in the meantime.” Id.
The Supreme Court has since walked back its decision in Humphrey’s Executor, explaining that the court’s conclusion in that case “that the FTC did not exercise executive power has not withstood the test of time.” And today’s FTC exercises even more executive power than it did in the 1930s, with the agency now enforcing scores of federal statutes.
But the fundamental problem with the reasoning of Humphrey’s Executor was the court’s premise that our constitutional republic allows for a headless fourth branch of government that holds quasi-legislative, quasi-executive, and quasi-judicial functions. Rather, the United States’ Constitution clearly delineates the power of each branch of government, in Articles I, II, and III.
Of significance for Trump v. Slaughter is Article II which expressly vests “the Executive power” in “a President” of the United States. And the text, structure and historical context of Article II establish that the president, as sole head of the Executive Branch, holds all executive power — including an “untrammeled authority to remove executive branch officials.” Thus, if the Supreme Court remains faithful to the original understanding of the vesting clauses of the Constitution, the high court will hold Trump acted within his executive authority when he fired Slaughter.
Yet earlier this fall, Professor Caleb Nelson, a University of Virginia School of Law professor and a former clerk of Justice Thomas, argued in an article for the Democracy Project at NYU Law that the Necessary and Proper Clause of the Constitution allows Congress to limit the president’s ability to remove officers “only for defined causes and through defined processes.” And Professor Nelson made this argument stressing he is “an originalist.”
Professor Nelson’s analysis, however, cannot withstand scrutiny, as Professor Philip Hamburger of Columbia Law School showed in his response published in the Yale Journal on Regulation.
First, Professor Hamburger countered Professor Nelson’s “cramped” view of “executive power” as limited to “executing laws and judgments made by others, such as statutes enacted by Congress and judicial judgment rendered by courts.” Rather, as Professor Hamburger has detailed in his earlier scholarship, at the founding the executive power included not merely law-enforcing authority, but also a “nation’s action, strength or force.” And to exercise the force of the nation, the president must maintain control over those subordinates who act on behalf of the executive.
Recognizing the breadth of executive power, as understood at the founding, it is no surprise then that James Madison believed the executive power included both the power to appoint and remove officials, Professor Hamburger explained. But the founders treated the powers differently, with Article II requiring the president to obtain the advice and consent of the Senate in making appointments, while the Constitution “remains silent about removal, thereby leaving the President’s executive removal power entirely unlimited. And when the First Congress considered the question of the president’s removal authority, it too found the Constitution left that power unrestrained.”
The Take Care Clause of the Constitution further cements this understanding of the executive’s removal authority, for the president can only fulfill his Article II duty to “take Care that the Laws be faithfully executed” if he has the authority to fire — at will — officials such as Slaughter. Here, Professor Hamburger eviscerates Professor Nelson’s suggestion that an absolute removal authority is unnecessary because the president could always inform Congress and recommend impeachment of the subordinate. “Really?” Professor Hamburger writes, continuing:
“Is it to be believed that the President can adequately control wayward subordinates by asking Congress to impeach them? How can the President ensure enforcement of the laws by relying on another branch of government — indeed, a distinctively cumbersome power of the most cumbersome branch? Adding to the difficulty, what if Congress, in opposition to the President, were to take a different view of the faithful execution of the laws? The sheer unreality of Professor Nelson’s proposal goes far in suggesting that it is mistaken.”
Professor Nelson posits several other supposed justifications for limiting the president’s removal authority, which Professor Hamburger similarly disembowels, and for which there is no need to repeat. What merits mention, though, is that Professor Nelson’s closing paragraph seems to provide the real rationale underlying his argument, which colloquial comes down to “Orange Man Bad,” with the NYU Law School professor writing:
“When the First Congress confronted the same ambiguities, more than one member warned against interpreting the Constitution in the expectation that all Presidents would have the sterling character of George Washington. The current Supreme Court may likewise see itself as interpreting the Constitution for the ages, and perhaps some of the Justices take comfort in the idea that future Presidents will not all have the character of Donald Trump. But the future is not guaranteed; a President bent on vengeful, destructive, and lawless behavior can do lasting damage to our norms and institutions.”
Given that President Trump has scored more than twenty victories in the Supreme Court less than a year into his second term, one would think it would be the lawlessness of the lower courts that would concern the justices — well that and the Constitution. And the Constitution is clear that all executive authority resides in the president.
On behalf of the New Civil Liberties Alliance, Margot Cleveland co-authored, along with Philip Hamburger and Mark Chenoweth, an amicus curiae brief in Trump v. Slaughter, arguing the lower court’s decision that the President lacked authority to fire Slaughter should be reversed.
Margot Cleveland is an investigative journalist and legal analyst and serves as The Federalist’s senior legal correspondent. Margot’s work has been published at The Wall Street Journal, The American Spectator, the New Criterion, National Review Online, Townhall.com, the Daily Signal, USA Today, and the Detroit Free Press.
She is also a regular guest on nationally syndicated radio programs and on Fox News, Fox Business, and Newsmax. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals.
Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. Cleveland is also of counsel for the New Civil Liberties Alliance.
Cleveland is on Twitter at @ProfMJCleveland where you can read more about her greatest accomplishments—her dear husband and dear son. The views expressed here are those of Cleveland in her private capacity.
