Rule of Law Clinic Files Amicus Brief in Supreme Court FTC Commissioner Case
A group of prominent Republican lawyers and former senior government officials filed an amicus brief today urging the Supreme Court to hold that the Constitution does not permit President Trump to remove without cause Rebecca Kelly Slaughter from her position as a commissioner of the Federal Trade Commission (FTC). Amici, who have decades of combined government experience, argue that “for cause” removal restrictions like those at issue here are constitutional, as demonstrated by the original intent of the Constitution’s Framers, the long history of federal multimember regulatory agencies, and the Court’s own precedents. To hold otherwise, amici warn, would radically erode the Constitution’s checks and balances and unconstitutionally concentrate undue, excessive power — including power over the nation’s economy — in the president’s hands. The group includes 24 former White House lawyers, retired federal judges and governors, and other senior government officials who served in senior positions across six Republican presidential administrations.
Amici are represented by the Peter Gruber Rule of Law Clinic at Yale Law School and by Foley Hoag LLP.
In March 2025, President Donald Trump sought to remove FTC Commissioner Slaughter, without invoking or meeting the “for cause” removal provision of the FTC Act. That provision states that commissioners can be removed by the President only for “inefficiency, neglect of duty, or malfeasance in office.” Commissioner Slaughter challenged the President’s action on constitutional grounds and the District Court for the District of Columbia issued a preliminary injunction in favor of Commissioner Slaughter. The Supreme Court stayed that preliminary injunction and subsequently granted certiorari to hear the case on its merits. Oral argument in the case is scheduled for Dec. 8, 2025.
The amicus brief states that the Supreme Court decided exactly this issue 90 years ago, in the landmark 1935 decision of Humphrey’s Executor. In that case, the Supreme Court held unanimously that President Roosevelt could not fire an FTC commissioner, except if he satisfied the “for cause” provision that Congress had put in place. That provision was designed to provide FTC commissioners a modest degree of insulation from political pressure, so that their decisions would reflect and be informed by bipartisan views. Looking to the intent of the Framers of the Constitution, Humphrey’s Executor concluded that this “for cause” removal provision was constitutional. Significantly, the Court’s unanimous decision was written by Justice George Sutherland, who was a pioneering proponent and practitioner of the doctrine that has since become known as “orginalism” — the view that it is critical to base constitutional decisions on the “original intent” of the Framers of the Constitution, according to the brief.
Amici also write that historical scholarship since Humphrey’s Executor — including by originalist scholars — supports the Court’s conclusions in that case. Since the country's founding, Congress has created commissions, agencies, and boards with members that the president could not remove, or could remove only in certain circumstances, according to the brief. This includes the First Congress’s creation of the Sinking Fund Commission and the U.S. Mint, as well as the creation of the First and Second Banks of the United States.
The FTC follows in this long line of economic regulatory agencies, which continued through the 19th century, according to the brief. The FTC formed one of the key pillars of President Woodrow Wilson’s “New Freedom” program, along with its analogue, the Federal Reserve. Despite legislative changes since 1935, the powers the FTC currently exercises fall into the same categories that Humphrey’s Executor found to be within constitutional bounds. Signers of the brief state that as a result of subsequent legislative amendments, the President now has more control over the FTC than President Roosevelt did in 1935 — specifically, the power to designate the FTC’s chairman at any time; to the extent he seeks even more power, the solution is to seek that from Congress, not seize it unilaterally and unconstitutionally.
The brief argues that it would be profoundly unoriginalist and unconservative to overturn Humphrey’s Executor. To do so would be against prior precedents of the Supreme Court, which have consistently followed Humphrey’s Executor, including in decisions by Justice Felix Frankfurter (Wiener v. U.S.) and Chief Justice William Rehnquist (Morrison v. Olson). This would constitute a radical restructuring of the government and society, unconstitutionally granting the President excessive and undue power, including power over the economy, according to the brief.
Amici comprise 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. Amici include senior officials who served in one or more of the Republican administrations of Presidents Nixon, Ford, Reagan, George H.W. Bush, George W. Bush, and Trump, including as White House counsel to the president, Department of Justice leaders, executive branch agency heads and senior appointees, and independent agency officials. Amici also include retired federal judges appointed by Republican presidents, as well as former governors and members of Congress elected as Republicans. Collectively, amici have decades of government experience, spanning the last 50 years. Their interest in this case lies in preserving the separation of powers and checks and balances that are fundamental to our Constitution and the rule of law in our country.
The Peter Gruber Rule of Law Clinic was founded in 2016 by Professor Harold Hongju Koh and William O. Douglas Clinical Professor of Law Michael Wishnie ’93 to address threats to the rule of law. The Clinic is now led by Koh, Aharon Barak Distinguished Rule of Law Fellow Bruce C. Swartz ’79, Peter Gruber Rule of Law Fellow Sonia Mittal ’13, as well as Visiting Lecturers in Law Eugene Fidell, Margaret Donovan, and Justin Cole ’23. Attorneys Hampton Y. Dellinger ’93 and Arsalan Suleman of Foley Hoag LLP also represent amici.
Current Yale Law students and clinic members who worked on the brief include Kate Ahrens ’27, Jackson Dellinger ’26, Sarah Donilon ’26, Emily Elledge ’26, Isabel Gensler ’26, Avi Gupta ’26, Riler Holcombe ’26, Jake Mattis ’26, Kaitlyn Van Baalen ’27, and Brady Worthington ’27.
