Trump v. Slaughter

The Federal Trade Commission (FTC) is a bipartisan, five-member expert agency that protects the public against unfair or deceptive business practices. FTC Commissioners are appointed by the President and confirmed by the Senate to serve seven-year terms. By statute, a Commissioner can be removed by the President prior to the end of his or her term only for “inefficiency, neglect of duty, or malfeasance in office.”

Rebecca Kelly Slaughter was appointed as an FTC Commissioner by President Trump during his first term and subsequently reappointed by President Biden. Shortly after President Trump began his second term, he purported to terminate Commissioner Slaughter. He did not allege inefficiency, neglect of duty, or malfeasance in office. Commissioner Slaughter filed a lawsuit challenging her termination. In response, the President argued that FTC Commissioners’ statutory tenure protections are unconstitutional because the President has unlimited authority to fire executive officers. The district court rejected this argument, recognizing that a unanimous 1935 Supreme Court precedent, Humphrey’s Executor v. United States, upheld the tenure protections’ constitutionality. The court then entered an injunction barring certain executive officers from giving effect to Commissioner Slaughter’s unlawful termination. The Supreme Court granted review and agreed to consider whether Humphrey’s Executor should be overruled.

In the Supreme Court, Public Citizen filed an amicus brief supporting Commissioner Slaughter. The brief explains that Humphrey’s Executor correctly holds that when Congress creates an executive agency that (like the FTC) is made up of a body of experts responsible for implementing Congress’s laws by promulgating regulations and taking enforcement action, for-cause removal protections do not infringe on the President’s constitutional authority. The President, after all, is responsible for taking care that Congress’s laws be faithfully executed, and absent inefficiency, neglect of duty, or malfeasance in office, FTC Commissioners properly serve precisely that function.