SRL Members Sign Supreme Court Amicus Brief in Slaughter Case
Board Members the Hon. J. Michael Luttig, Alan Raul, Donald Ayer, and Stuart M. Gerson joined Charter Members Hon. Mickey Edwards, Hon. D. Lowell Jensen, John Giraudo, Carter G. Phillips, Paul Rosenzweig, Nicholas Rostow, Robert B. Shanks, and Stan Twardy, Jr., as well as Advisory Council Member J. Michael Shepherd and Member Nuala O’Connor, along with other “former White House lawyers, senior government officials, federal judges, governors, and members of Congress who were appointed or nominated by Republican Presidents, or who were elected as Republicans” in submitting an amicus brief to the Supreme Court in the pivotal case of Trump v Slaughter.
The case arises from President Trump’s attempt to remove Federal Trade Commission Commissioner Rebecca Kelly Slaughter, notwithstanding the statutory protection that allows removal only “for inefficiency, neglect of duty, or malfeasance.” The administration argues that these removal limits are unconstitutional because they restrict the President’s Article II authority. The D.C. Circuit did not have the opportunity to rule before the Supreme Court granted certiorari before judgment.
The amici argue first that Humphrey’s Executor was itself an originalist decision. Justice Sutherland’s unanimous opinion drew heavily from Founding-era understandings, including James Madison’s statements in the First Congress that removal restrictions can be appropriate when an office exercises “quasi-legislative” or “quasi-judicial” responsibilities rather than purely executive ones. According to the brief, this originalist framework remains sound: Madison, Marshall, and other Founding-era sources accepted that Congress could create offices that “partake” of multiple functions and were not subject to at-will presidential removal. The amici further argue that early American institutions—such as the Sinking Fund Commission, the Mint, and the First and Second Banks of the United States—likewise placed key economic regulatory functions in multimember bodies with removal limits, illustrating that independent commissions are consistent with the original constitutional design.
Second, the amici reject the government’s suggestion that the FTC has changed so substantially since 1935 that Humphrey’s no longer applies. They contend that the FTC’s powers today—rulemaking, adjudication, civil enforcement, investigation, and limited foreign coordination—are the same types of “quasi-legislative” and “quasi-judicial” functions the agency exercised at the time of Humphrey’s. If anything, Congress has given the President greater control over the FTC since 1935: the President now designates the Chair, controls penalty enforcement through the Attorney General, and influences the agency’s internal leadership. These changes strengthen, rather than weaken, the constitutional basis for removal protections.
Finally, the brief argues that overturning Humphrey’s Executor would defy both originalist methodology and the doctrine of stare decisis. For nearly a century—and indeed since the Founding—Congress has structured independent commissions with for-cause removal protections, and the Supreme Court has repeatedly reaffirmed Humphrey’s in cases such as Wiener, Morrison, and Seila Law. Dismantling this framework would constitute a radical reallocation of power to the President, undermine the stability of major institutions (including the Federal Reserve), and upset deep reliance interests across the political and economic system. The amici warn that the administration’s theory would permit sweeping presidential control over all multimember agencies, an outcome they describe as historically baseless, anti-originalist, and dangerous for the separation of powers.
In short:
“The Administration proposes a profoundly anti-Burkean and anti-Madisonian step: radically restructure a system by eroding constitutional checks and balances and concentrating all power—including economic power—in the President’s hands. Accepting this invitation would overrule a long line of precedents, violate separation of powers, and deal an enormous blow to the stability and freedom of our Nation. This Court should not ratify such a profoundly anti-originalist attempt by the President to permanently unbalance the separation of powers.”
Read the full amicus brief here.