Amicus Curiae Brief — Donald J. Trump, President of the United States, et al., Petitioners v. Rebecca Kelly Slaughter
Supreme Court briefOct 16, 2025
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No. 25-332
IN THE
Supreme Court of the United States
_________________________________________________
DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,
ET AL.,
Petitioners,
v.
REBECCA KELLY SLAUGHTER, ET AL.,
Respondents.
____________________________________________________________________________________________________
On Writ of Certiorari to the
United States Court of Appeals
for the D.C. Circuit
____________________________________________________________________________________________________
BRIEF OF AMICUS CURIAE
AMERICANS FOR PROSPERITY FOUNDATION
IN SUPPORT OF PETITIONERS
————
Michael Pepson
Counsel of Record
AMERICANS FOR PROSPERITY FOUNDATION
4201 Wilson Blvd., Ste. 1000
Arlington, VA 22203
(571) 329-4529
mpepson@afphq.org
Counsel for Amicus Curiae
October 16, 2025
i
TABLE OF CONTENTS
Table of Authorities.................................................... ii
Interest of Amicus Curiae ...........................................1
Summary of Argument................................................2
Argument .....................................................................5
I.
The Constitution Does Not Authorize a
Headless Fourth Branch ..................................5
II.
The At-Will Removal Power is Indispensable
for Accountability ...........................................10
III.
For-Cause Removal Protections for Officers
Wielding
Substantial
Executive
Power
Empower a Fourth Branch.............................12
IV.
The Time Has Come to Inter Humphrey’s
Executor...........................................................17
A. Humphrey’s Was Poorly Reasoned.................17
B. Humphrey’s Executor Cannot Be Squared with
This Court’s Modern Precedent .....................21
C. Today’s FTC Does Not Fit Within Humphrey’s
Executor...........................................................24
D. The Sky Will Not Fall If This Court Erects a
Tombstone for Humphrey’s Executor .............28
Conclusion .................................................................31
ii
TABLE OF AUTHORITIES
Page(s)
Cases
Ameron, Inc. v. U.S. Army Corps of Eng’rs,
787 F.2d 875 (3d Cir. 1986) ................................ 6
AMG Capital Mgmt., LLC v. FTC,
593 U.S. 67 (2021) ............................................. 27
Axon Enter., Inc. v. FTC,
598 U.S. 175 (2023) ........................................... 27
Bowsher v. Synar,
478 U.S. 714 (1986) ....................................... 9, 11
City of Arlington v. FCC,
569 U.S. 290 (2013) ............................... 12, 13, 20
Collins v. Yellen,
594 U.S. 220 (2021) ..................... 9, 10, 11, 12, 29
Consumer Fin. Prot. Bureau v. Cmty. Fin.
Servs. Ass’n of Am., Ltd.,
601 U.S. 416 (2024) ..................................... 30, 31
Consumers’ Rsch. v. Consumer Prod. Safety
Comm’n,
98 F.4th 646 (5th Cir. 2024) ......... 4, 9, 24, 25, 30
Consumers’ Rsch. v. Consumer Prod. Safety
Comm’n,
91 F.4th 342 (5th Cir. 2024) ............................. 25
iii
Dellinger v. Bessent,
No. 25-5028,
2025 WL 559669 (D.C. Cir. 2025)..................... 11
Dep’t of Transp. v. Ass’n of Am. R.R.,
575 U.S. 43 (2015) ............................................... 6
FCC v. Consumers’ Rsch.,
145 S. Ct. 2482 (2025) ................................. 10, 16
Feds for Med. Freedom v. Biden,
63 F.4th 366 (5th Cir. 2023) ....................... 13, 14
Fleming v. United States Dep’t of Agric.,
987 F.3d 1093 (D.C. Cir. 2021) ..................... 9, 20
Free Enter. Fund v. Pub. Co. Accounting
Oversight Bd.,
561 U.S. 477 (2010) ........... 5, 7, 10, 12, 16, 22, 29
FTC v. Am. Nat’l Cellular,
868 F.2d 315 (9th Cir. 1989) ............................. 28
FTC v. Cardiff,
No. 18-2104, 2020 U.S. Dist. LEXIS
137800 (C.D. Cal. July 24, 2020) ...................... 28
FTC v. Cement Inst.,
333 U.S. 683 (1948) ........................................... 25
FTC v. Facebook, Inc.,
581 F. Supp. 3d 34 (D.D.C. 2022) ..................... 27
FTC v. Qualcomm Inc.,
935 F.3d 752 (9th Cir. 2019) ............................. 15
iv
FTC v. Ruberoid Co.,
561 U.S. 477 (2010) ..................................... 12, 21
Gamble v. United States,
587 U.S. 678 (2019) ........................................... 21
Griffiths Hughes, Inc. v. FTC,
63 F.2d 362 (D.C. Cir. 1933) ....................... 25, 26
Harris v. Bessent,
No. 25-5037,
2025 WL 980278 (D.C. Cir. 2025)7, 15, 17, 22, 24
Heater v. FTC,
503 F.2d 321 (9th Cir. 1974) ............................. 25
Humphrey’s Executor v. United States,
295 U.S. 602 (1935) ................................. 3, 18, 19
In re Aiken Cty.,
645 F.3d 428 (D.C. Cir. 2011) ......... 14, 15, 28, 29
In re Sealed Case,
838 F.2d 476 (D.C. Cir. 1988) ....................... 7, 10
Kennedy v. Braidwood Mgmt.,
145 S. Ct. 2427 (2025) ....................................... 11
Loper Bright Enterprises v. Raimondo,
603 U.S. 369 (2024) ................................. 4, 17, 24
Mistretta v. United States,
488 U.S. 361 (1989) ..................................... 19, 25
Morrison v. Olson,
487 U.S. 654 (1988) ................... 4, 5, 7, 18, 21, 27
v
Myers v. United States,
272 U.S. 52 (1926) ..................... 6, 7, 8, 10, 22, 23
Nat’l Petroleum Refiners Ass’n v. FTC,
482 F.2d 672 (D.C. Cir. 1973) ........................... 26
PHH Corp. v. Consumer Fin. Prot. Bureau,
881 F.3d 75 (D.C. Cir. 2018) .. ……6, 9, 14, 16, 21
Printz v. United States,
521 U.S. 898 (1997) ............................................. 7
Seila Law LLC v. Consumer Fin. Prot.
Bureau,
591 U.S. 197 (2020)…. . 2, 4, 5, 6, 7, 8, 16, 17, 18,
19, 20, 21, 22, 23, 24, 27, 29, 30, 31
Stern v. Marshall,
564 U.S. 462 (2011) ........................................... 20
Trump v. Boyle,
145 S. Ct. 2653 (2025) ............................. 4, 17, 24
Trump v. Mazars USA, LLP,
591 U.S. 848 (2020) ............................................. 2
Trump v. United States,
603 U.S. 593 (2024) ................................... 7, 9, 23
Trump v. Wilcox,
145 S. Ct. 1415 (2025) ....................... 8, 17, 24, 30
United States v. Arthrex, Inc.,
594 U.S. 1 (2021) ......................................... 11, 20
United States Term Limits v. Thornton,
514 U.S. 779 (1995) ............................................. 5
vi
Wayman v. Southard,
23 U.S. (10 Wheat.) 1 (1825) ............................... 6
Whitman v. Am. Trucking Ass’ns,
531 U.S. 457 (2001) ........................................... 20
Constitution
U.S. Const. art. I, § 1 ................................................ 6
U.S. Const. art. II, § 1, cl. 1.................... 2, 3, 6, 7, 20
U.S. Const. art. II, § 2, cl. 2...................................... 3
U.S. Const. art. II, § 3 ...................................... 2, 3, 7
U.S. Const. art. III, § 1 ............................................. 6
Statutes
15 U.S.C. § 45(g) ..................................................... 27
15 U.S.C. § 45(l) ...................................................... 27
15 U.S.C. § 45(m).............................................. 26, 27
15 U.S.C. § 46(j)(2) ................................................. 28
15 U.S.C. § 49 ......................................................... 27
15 U.S.C. § 53(a) ..................................................... 26
15 U.S.C. § 53(b) ..................................................... 26
15 U.S.C. § 57a ....................................................... 27
15 U.S.C. § 57b ....................................................... 27
15 U.S.C. § 57b-1(c) ................................................ 27
vii
15 U.S.C. § 1681s(a)(2) ........................................... 27
15 U.S.C. § 6502(c) ................................................. 27
15 U.S.C. § 6505(d) ................................................. 27
Wheeler-Lea Act, Pub. L. No. 447, 52 Stat.
111 (1938) .......................................................... 26
Trans-Alaska Pipeline Authorization Act,
Pub. L. No. 93-153, 87 Stat. 576 (1973) ........... 26
Magnuson-Moss Warranty-Federal Trade
Commission Improvement Act, Pub. L.
No. 93- 637, 88 Stat. 2183 (1975) ............... 26, 27
Other Authorities
Aditya Bamzai & Saikrishna Prakash,
How to Think About the Removal Power,
110 Va. L. Rev. Online 159 (2024) ...................... 9
Aditya Bamzai & Saikrishna Prakash,
The Executive Power of Removal,
136 Harv. L. Rev. 1756 (2023) ............................ 9
Akhil Reed Amar, America’s Constitution: A
Biography (2005) ................................................. 8
Andrew M. Grossman & Sean Sandoloski,
The End of Independent Agencies?
Restoring Presidential Control of the
Executive Branch,
22 Federalist Soc’y Rev. 216 (2021) 17, 23, 28, 29
1 Annals of Cong. (1789) .................................... 6, 10
viii
Br. for Samuel F. Rathbun, Executor,
1935 WL 32964 (filed Mar. 19, 1935) ............... 19
Br. for the United States,
1935 WL 32965 (filed April 6, 1935) ................ 19
Daniel A. Crane,
Debunking Humphrey’s Executor,
83 Geo. Wash. L. Rev. 1835 (2015) ....... 15, 25, 28
Dissenting Statement of Commissioner
Andrew N. Ferguson, Joined by
Commissioner Melissa Holyoak, In the
Matter of the Non-Compete Clause Rule,
Matter No. P201200 (June 28, 2024),
https://www.ftc.gov/system/files/ftc_gov/p
df/ferguson-noncompete-dissent.pdf ................ 16
FTC, Criminal Liaison Unit,
https://www.ftc.gov/enforcement/crimina
l-liaison-unit ...................................................... 28
FTC, Legal Library: Statutes,
https://www.ftc.gov/legallibrary/browse/statutes ..................................... 27
FTC, Notice of Penalty Offenses,
https://www.ftc.gov/enforcement/penaltyoffenses .............................................................. 26
Gov’t Stay App., Trump et al. v. Boyle et al.,
No. 25A11 (U.S., filed July 2, 2025) ................. 15
Jason Marisam,
The President’s Agency Selection Powers,
65 Admin. L. Rev. 821 (2013) ........................... 13
ix
John Yoo,
Unitary, Executive, or Both?,
76 U. Chi. L. Rev. 1935 (2009).......................... 13
Neomi Rao,
Removal: Necessary and Sufficient for
Presidential Control,
65 Ala. L. Rev. 1205 (2014) ........................... 7, 22
Peter L. Strauss,
The Place of Agencies in Government:
Separation of Powers and the Fourth
Branch,
84 Colum. L. Rev. 573 (1984)............................ 19
Powers and Duties of the Fed. Trade
Comm’n in the Conduct of
Investigations,
34 Op. Att’y Gen. 553 (1925) ............................ 18
Saikrishna Prakash,
The Essential Meaning of Executive
Power,
2003 U. Ill. L. Rev. 701 (2003) ............................ 8
1
BRIEF OF AMICUS CURIAE
IN SUPPORT OF PETITIONERS
Under Supreme Court Rule 37.3, Americans for
Prosperity Foundation (“AFPF”) respectfully submits
this amicus curiae brief in support of Petitioners.1
INTEREST OF AMICUS CURIAE
Amicus curiae AFPF is a 501(c)(3) nonprofit
organization committed to educating and training
Americans to be courageous advocates for the ideas,
principles, and policies of a free and open society.
Some of those key ideas include the separation of
powers and constitutionally limited government. As
part of this mission, it appears as amicus curiae before
federal and state courts. Here, AFPF writes to
highlight the broader separation-of-powers and
practical implications of this case.
AFPF believes the scope of federal power has been
expanded well beyond what the Constitution’s grant
of limited, enumerated powers allows. It likewise
believes that Congress may not unconstitutionally
transfer Article I legislative power or Article III
judicial power to the executive. AFPF opposes
executive overreach and supports a proper
understanding of the scope of federal power. But
AFPF’s interest here is not in expanding executive
power beyond constitutional bounds. To the contrary,
1 Amicus curiae states that no counsel for any party authored
this brief in whole or in part, and no entity or person, aside from
amicus curiae or its counsel, made any monetary contribution
intended to fund the preparation or submission of this brief.
2
it is instead ensuring that it is unified in an elected
President, as the Constitution requires, and not
diffused in an extraconstitutional Fourth Branch. The
Constitution establishes numerous structural
safeguards against Executive Branch (and federal)
overreach that also must be vigorously enforced; a
headless Administrative State is not one of them.
SUMMARY OF ARGUMENT
This case is about whether the Constitution
authorizes a de facto Fourth Branch of government
comprised of unelected bureaucrats insulated from
accountability to the political branches—and thus to
the American People—and permitted to make policy
choices and enforcement decisions impacting the
entire private economy. The answer is easily no.
In this country, all governmental power must flow
from its proper source: We the People. Our system of
government relies on the consent of the governed,
memorialized in the Constitution. In that document,
the People agreed that three branches of
government—legislative, executive, and judicial—
would exercise different forms of power that must be
kept separate. Not four. And under the Constitution,
agencies that wield executive power must be located
in the Executive Branch and subject to presidential
control.
Under Article II, “[t]he entire ‘executive Power’
belongs to the President alone,” Seila Law LLC v.
Consumer Fin. Prot. Bureau, 591 U.S. 197 (2020); U.S.
Const. art. II, § 1, cl. 1, who “shall take Care that the
Laws be faithfully executed,” U.S. Const. art. II, § 3.
This means that “[t]he President is the only person
3
who alone composes a branch of government.” Trump
v. Mazars USA, LLP, 591 U.S. 848, 868 (2020). Article
II contemplates that the President will be assisted by
subordinate officers in carrying out his broad
constitutionally charged responsibilities, U.S. Const.
art. II, § 2, cl. 2, including enforcing federal law. But
to protect liberty and ensure accountability, the
Constitution necessarily also grants the President
power to remove these Officers at will. U.S. Const. art.
II, § 1, cl. 1; id. art. II § 3. That power is indefeasible.
Congress may not limit that core Article II power.
The rise of “independent” agencies with vast law
enforcement powers under the banner of Humphrey’s
Executor v. United States, 295 U.S. 602 (1935), has
undermined the Constitution’s separation of powers,
allowed wide swaths of the Executive Branch to
escape accountability, and threatened individual
liberty. These extraconstitutional administrative
bodies have become a de facto headless Fourth Branch
of government outside the control of the political
branches and thus the American people. This
arrangement makes a mockery of consent of the
governed. And it is antithetical to our Republic’s
system of constitutionally limited self-government.
Unlike a fine wine, Humphrey’s Executor has not
gotten better with age. Instead, its poor reasoning has
soured. Over the past ninety years, Humphrey’s
Executor has enabled a host of separation-of-powers
violations, which have had real consequences for
countless businesses and individuals who have found
themselves in the crosshairs of these “independent”
agencies’ law-enforcement activities. The targets of
these extraconstitutional entities have no meaningful
recourse to any elected officials, as none of them has
4
the power to rein in these free-floating administrative
bodies. Nor can the President remove the unelected
heads when their policy and law enforcement
priorities conflict with his.
As Judge Rao explained below, Humphrey’s “is
inconsistent with the Constitution’s vesting of all
executive power in the President and with more
recent Supreme Court decisions.” J.A. 132
(dissenting). And today, Humphrey’s Executor is
“nearly, nearly, zombified precedent.” Consumers’
Rsch. v. Consumer Prod. Safety Comm’n, 98 F.4th 646,
648 n.10 (5th Cir. 2024) (Willett, J., concurring in the
denial of rehearing en banc). This Court has
seemingly “all but overturned” it. Trump v. Boyle, 145
S. Ct. 2653, 2655 (2025) (Kagan, J., dissenting). Even
its holding as applied to the 1935 Federal Trade
Commission (“FTC”) (as described by the Humphrey’s
Court) no longer applies to today’s FTC, let alone to
the myriad other “independent agencies” wielding
executive power today. Yet the specter of Humphrey’s
Executor continues to haunt our constitutional order.
There is simply no reason to allow this zombified
precedent to roam any longer. This Court should
sweep Humphrey’s “into the dustbin of repudiated
constitutional principles.” Morrison v. Olson, 487 U.S.
654, 725 (1988) (Scalia, J., dissenting). The time has
come to “place[] a tombstone on” Humphrey’s that “no
one can miss.” Loper Bright Enterprises v. Raimondo,
603 U.S. 369, 417 (2024) (Gorsuch, J., concurring).
Our constitutional Republic will be healthier for it.
Leaving Humphrey’s on the books “does not enhance
this Court’s legitimacy; it subverts political
accountability and threatens individual liberty.” Seila
5
Law, 591 U.S. at 251 (Thomas, J., concurring in part,
dissenting in part). And neither Humphrey’s
Executor’s stale vintage nor any putative “reliance”
interest federal officials may claim to have in
insulation from political accountability justify
retaining the “quasi-legislative, quasi-judicial”
charade upon which that decision rests.
For the foregoing reasons, this Court should
squarely overrule Humphrey’s Executor. In so doing,
it should make clear, at a minimum, the President’s
plenary at-will removal authority under Article II
extends to all principal Officers who wield Executive
power, and that Congress cannot statutorily restrict
this indefeasible power. This clear rule would give
lower courts much-needed guidance in resolving
ongoing litigation challenging the President’s at-will
removal power.
ARGUMENT
I.
The Constitution Does Not Authorize a
Headless Fourth Branch.
“Our system of government rests on one overriding
principle: All power stems from the consent of the
people.” United States Term Limits v. Thornton, 514
U.S. 779, 846 (1995) (Thomas, J., dissenting). “Our
Constitution was adopted to enable the people to
govern themselves, through their elected leaders.”
Free Enter. Fund v. Pub. Co. Accounting Oversight
Bd., 561 U.S. 477, 499 (2010). The Founders “viewed
the principle of separation of powers as the absolutely
central guarantee of a just Government.” Morrison,
487 U.S. at 697 (Scalia, J., dissenting). To protect
liberty, the Constitution “sets out three branches and
6
vests a different form of power in each—legislative,
executive, and judicial.” Seila Law, 591 U.S. at 239
(Thomas, J., concurring in part, dissenting in part)
(citing U.S. Const. art. I, § 1; U.S. Const. art. II, § 1,
cl. 1; U.S. Const. art. III, § 1). “[T]he legislature
makes, the executive executes, and the judiciary
construes the law[.]” Wayman v. Southard, 23 U.S. (10
Wheat.) 1, 46 (1825) (Marshall, C.J.). “These grants
are exclusive.” Dep’t of Transp. v. Ass’n of Am. R.R.,
575 U.S. 43, 67 (2015) (Thomas, J., concurring in the
judgment).
“‘If there is a principle in our Constitution, indeed
in any free Constitution, more sacred than another, it
is that which separates the Legislative, Executive and
Judicial powers.’” Myers v. United States, 272 U.S. 52,
116 (1926) (quoting 1 Annals of Congress 581). That
document “establishes three branches of government,
not four[,]” and thus “there can be no fourth branch,
headless or otherwise.” Ameron, Inc. v. U.S. Army
Corps of Eng’rs, 787 F.2d 875, 892 (3d Cir. 1986)
(Becker, J., concurring in part). “Nor can Congress
create agencies that straddle multiple branches of
Government.” Seila Law, 591 U.S. at 247 (Thomas, J.,
concurring in part, dissenting in part). The
Constitution requires that these powers must be kept
separate and cannot be blended.
As an additional guardrail, “the Framers insisted
upon accountability for the exercise of executive
power,” “lodg[ing] full responsibility . . . in a President
of the United States, who is elected by and
accountable to the people.” PHH Corp. v. Consumer
Fin. Prot. Bureau, 881 F.3d 75, 164 (D.C. Cir. 2018)
(en banc) (Kavanaugh, J., dissenting). “Whereas the
Framers divided the Legislative Power, they unified
7
the Executive.”2 Harris v. Bessent, No. 25-5037, 2025
WL 980278, at *3 (D.C. Cir. Mar. 28, 2025) (Walker,
J., concurring), vacated on reconsideration en banc,
No. 25-5037, 2025 WL 1021435 (D.C. Cir. Apr. 7,
2025). The Constitution provides in no uncertain
terms that “[t]he executive Power shall be vested in a
President,” U.S. Const. Art. II, § 1, cl. 1, who “shall
take Care that the Laws be faithfully executed,” U.S.
Const. Art. II, § 3, thereby “creat[ing] a strongly
unitary executive.” Neomi Rao, Removal: Necessary
and Sufficient for Presidential Control, 65 Ala. L. Rev.
1205, 1213 (2014).
Under our constitutional structure “[t]he entire
‘executive Power’ belongs to the President alone,”
Seila Law, 591 U.S. at 213, “including the power of
appointment and removal of executive officers,”
Myers, 272 U.S. at 164. This ensures “[t]he buck stops
with the President,” Free Enter. Fund, 561 U.S. at
493, who “bears responsibility for the actions of the
many departments and agencies within the Executive
Branch,” Trump v. United States, 603 U.S. 593, 607
(2024). As Article II “make[s] emphatically clear,” the
President is “personally responsible for his branch.”
“The insistence of the Framers upon unity in the Federal
Executive—to insure both vigor and accountability—is well
known.” Printz v. United States, 521 U.S. 898, 922 (1997). They
“provided for a unitary executive to ensure that the branch
wielding the power to enforce the law would be accountable to
the people.” In re Sealed Case, 838 F.2d 476, 488 (D.C. Cir. 1988)
(Silberman, J.). The “unitary Executive” was designed “not
merely to assure effective government but to preserve individual
freedom.” Morrison, 487 U.S. at 727 (Scalia, J., dissenting).
2
8
Akhil Reed Amar, America’s
Biography 197 (2005).
Constitution:
A
The President’s at-will removal power flows
directly from the Constitution, not from Congress.3
See Seila Law, 591 U.S. at 204; Myers, 272 U.S. at
163–64. Article II’s “vest[ing of] the executive power
in the President” grants him power to “remove
without cause executive officers who exercise
[executive] power on his behalf,” cabined only by
“narrow exceptions” under this Court’s precedent.
Trump v. Wilcox, 145 S. Ct. 1415, 1416 (2025)
(citations omitted).
Founding-era practice and original understanding
further support reading Article II to confer plenary atwill removal power. The removal power “was
discussed extensively in Congress when the first
executive departments were created in 1789.” Seila
Law, 591 U.S. at 214 (cleaned up). “Most members of
[the First] Congress recognized that forbidding
removal effectively would preclude presidential
control of law execution and destroy presidential
accountability for that task.” Saikrishna Prakash, The
Essential Meaning of Executive Power, 2003 U. Ill. L.
Rev. 701, 796 n.556 (2003). “Debates in the First
Congress, the so-called Decision of 1789, made clear
that the President is vested with plenary removal
“It is true that there is no removal clause in the
Constitution, but neither is there a separation of powers clause
or a federalism clause.” Seila Law, 591 U.S. at 227 (cleaned up).
3
9
power.”4 Fleming v. United States Dep’t of Agric., 987
F.3d 1093, 1114 (D.C. Cir. 2021) (Rao, J., concurring
in part, dissenting in part). The First Congress thus
“confirmed that Presidents may remove executive
officers at will.” PHH Corp., 881 F.3d at 168
(Kavanaugh, J., dissenting).
Nor may Congress limit the core at-will removal
power Article II exclusively vests in the President.
“[N]o statute can take that Presidential power away.”5
Collins v. Yellen, 594 U.S. 220, 267 (2021) (Thomas,
J., concurring). “The exclusive constitutional
authority of the President disables the Congress from
acting upon the subject.” Trump, 603 U.S. at 607
(cleaned up).
4 This “provides ‘contemporaneous and weighty evidence’ of the
Constitution’s meaning since many of the Members of the First
Congress ‘had taken part in framing that instrument.’” Bowsher
v. Synar, 478 U.S. 714, 723–24 (1986) (citation omitted).
5 “Unlike several state constitutions of the founding era, Article
II does not specify or suggest that appointment or removal are
default allocations from which Congress can depart.” Aditya
Bamzai & Saikrishna Prakash, How to Think About the Removal
Power, 110 Va. L. Rev. Online 159, 174 (2024). “[B]ecause the
Constitution nowhere grants Congress the authority to strip that
power from the President, the President’s removal power was
originally understood to be nondefeasible.” Consumers’ Rsch., 98
F.4th at 651 (Oldham, J., dissenting from denial of rehearing en
banc) (citing Aditya Bamzai & Saikrishna Prakash, The
Executive Power of Removal, 136 Harv. L. Rev. 1756, 1789 (2023))
10
II.
The
At-Will
Removal
Power
Indispensable for Accountability.
is
“As Madison stated on the floor of the First
Congress, ‘if any power whatsoever is in its nature
Executive, it is the power of appointing, overseeing,
and controlling those who execute the laws.’” Free
Enter. Fund, 561 U.S. at 492 (quoting 1 Annals of
Cong. 463 (1789)). Because the President’s “selection
of administrative officers is essential to the execution
of the laws by him, so must be his power of removing
those for whom he can not continue to be responsible.”
Myers, 272 U.S. at 117. To properly oversee and
control the Executive Branch, the President must
have “unrestricted power to remove the most
important of his subordinates in their most important
duties[.]” Id. at 134.
More broadly, “because the President, unlike
agency officials, is elected,” the President’s removal
power “is essential to subject Executive Branch
actions to a degree of electoral accountability.”
Collins, 594 U.S. at 252. “Not merely an abstract idea
of political theory, the President’s accountability is a
hallmark of our democracy[.]” In re Sealed Case, 838
F.2d at 489. “Without presidential responsibility” for
the actions of his subordinates “there can be no
democratic accountability for executive action.”6
“[W]hen Congress delegates authority to an independent
agency, no democratically elected official is accountable.” FCC v.
Consumers’ Rsch., 145 S. Ct. 2482, 2518 (2025) (Kavanaugh, J.,
concurring).
6
11
United States v. Arthrex, Inc., 594 U.S. 1, 28 (2021)
(Gorsuch, J., concurring in part, dissenting in part).
“[O]nly through the President can the Executive
Branch and its millions of personnel be held
democratically accountable.” Dellinger v. Bessent, No.
25-5028, 2025 WL 559669, at *17 (D.C. Cir. Feb. 15,
2025) (Katsas, J., dissenting). Article II’s vesting of atwill removal power allows the President to ensure
unelected officials “serve the people effectively and in
accordance with the policies that the people
presumably elected the President to promote.”
Collins, 594 U.S. at 252. “It is the power to
supervise—and, if need be, remove—subordinate
officials that allows a new President to shape his
administration and respond to the electoral will that
propelled him to office.” Id. at 278 (Gorsuch, J.,
concurring in part).
“At-will removal ensures that the lowest officers,
the middle grade, and the highest, will depend, as
they ought, on the President, and the President on the
community.” Id. at 252 (majority op.) (cleaned up). It
“is a ‘powerful tool for control,’” Kennedy v. Braidwood
Mgmt., 145 S. Ct. 2427, 2443 (2025) (citation omitted),
and a “means of ensuring supervision and direction,”
id. at 2445. After all, “[o]nce an officer is appointed, it
is only the authority that can remove him, and not the
authority that appointed him, that he must fear and,
in the performance of his functions, obey.” Bowsher,
478 U.S. at 726.
The President’s at-will removal power also
protects liberty. “Few things could be more perilous to
liberty than some ‘fourth branch’ that does not answer
even to the one executive official who is accountable to
12
the body politic.” Collins, 594 U.S at 278–79 (Gorsuch,
J., concurring in part) (citing FTC v. Ruberoid Co., 343
U.S. 470, 487 (1952) (Jackson, J., dissenting)). The
President’s Article II at-will removal power guards
against this threat. Limits on that core Executive
power allow “wholly unaccountable government
agent[s] [to] assert the power to make decisions
affecting individual lives, liberty, and property. The
chain of dependence between those who govern and
those who endow them with power is broken.” Id. at
278 (Gorsuch, J., concurring in part). For this reason,
“[i]f anything, removal restrictions may be a greater
constitutional evil than appointment defects.” Id. at
277 (Gorsuch, J., concurring in part).
III.
For-Cause Removal Protections for
Officers Wielding Substantial Executive
Power Empower a Fourth Branch.
As Justice Robert Jackson explained long ago,
“[t]he rise of administrative bodies probably has been
the most significant legal trend of the last century[.]”
Ruberoid Co., 343 U.S. at 487 (dissenting). The
problem is far worse today, as Congress has devised
ever more novel and powerful administrative bodies
unmoored from the Constitution. See City of Arlington
v. FCC, 569 U.S. 290, 313–14 (2013) (Roberts, C.J.,
dissenting). “The growth of the Executive Branch,
which now wields vast power and touches almost
every aspect of daily life, heightens the concern that it
may slip from the Executive’s control, and thus from
that of the people.” Free Enter. Fund, 561 U.S. at 499.
For good reason. “President Truman colorfully
described his power over the administrative state by
complaining, ‘I thought I was the president, but when
it comes to these bureaucrats, I can’t do a damn thing.’
13
President Kennedy once told a constituent, ‘I agree
with you, but I don’t know if the government will.’”
City of Arlington, 569 U.S. at 313–14 (Roberts, C.J.,
dissenting) (citations omitted).
That holds true today. As it stands now, “the
President actually controls surprisingly little of the
Executive Branch. Only a tiny percentage of
Executive Branch employees are subject to
Presidential removal.” Feds for Med. Freedom v.
Biden, 63 F.4th 366, 390 (5th Cir. 2023) (en banc) (Ho,
J., concurring). The bulk of the federal bureaucracy is
shielded from presidential removal—and thus from
accountability to the People through the elected
President—by civil service laws. See id. (Ho, J.,
concurring). This means that “a modern president is
more or less stuck with thousands of civil servants
whom he did not appoint and have little loyalty
toward him.” Jason Marisam, The President’s Agency
Selection Powers, 65 Admin. L. Rev. 821, 863 (2013).
This “make[s] it virtually impossible for a
President to implement his vision without the active
consent and cooperation of an army of unaccountable
federal employees.”7 Feds for Med. Freedom, 63 F.4th
at 390 (Ho, J., concurring). “Even if a president has
the perfect ally running an agency, that ally may still
fail to produce the desired results if the ally runs into
resistance from his civil servants.” Marisam, 65
Admin. L. Rev. at 863. And those unelected
“[O]ver time the tenure-like protections for the civil service
have sharply reduced the president’s ability to change the
direction of the permanent bureaucracy[.]” John Yoo, Unitary,
Executive, or Both?, 76 U. Chi. L. Rev. 1935, 1956–57 (2009).
7
14
bureaucrats are almost impossible to fire because
“they enjoy a de facto form of life tenure, akin to that
of Article III judges.”8 Feds for Med. Freedom, 63 F.4th
at 391 (Ho, J., concurring). These tenure-like
protections embolden some federal employees to view
themselves “as a free-standing interest group entitled
to make demands on their superiors.” Id. (Ho, J.,
concurring). And they do.
Now consider what Humphrey’s Executor, under a
maximalist reading, layers on top of this. “To
supervise and direct executive officers, the President
must be able to remove those officers at will.
Otherwise, a subordinate could ignore the President’s
supervision and direction without fear, and the
President could do nothing about it.” PHH Corp., 881
F.3d at 168 (Kavanaugh, J., dissenting). Humphrey’s
Executor dashes this scheme by blessing Congress’s
creation of free-floating administrative bodies that
“are not supervised or directed by the President.” Id.
at 164 (Kavanaugh, J., dissenting).
“Because of Humphrey’s Executor, the President
cannot remove an independent agency’s officers when
the agency pursues policies or makes decisions the
President disagrees with.” In re Aiken Cty., 645 F.3d
428, 442 (D.C. Cir. 2011) (Kavanaugh, J., concurring).
This effectively means that “the President does not
have the final word in the Executive Branch about”
policy decisions made by independent agencies. Id. at
8 These removal protections cause “a rather curious distortion of
our constitutional structure.” Feds for Med. Freedom, 63 F.4th at
390 (Ho, J., concurring).
15
446 (Kavanaugh, J., concurring). And the President
“lacks day-to-day control over large swaths of
regulatory policy and enforcement in the Executive
Branch[.]” Id. at 442 (Kavanaugh, J., concurring).
This is not just a theoretical problem. The FTC’s
failed prosecution of Qualcomm is a perfect example,
putting the FTC at odds with the Department of
Justice (“DOJ”), which shares authority to enforce
federal antitrust laws. See FTC v. Qualcomm Inc., 935
F.3d 752, 756 (9th Cir. 2019). Unlike the Executivecontrolled DOJ, the President cannot rein in the FTC.
This has happened before. And the agencies have
opposed one another during prior Administrations,
particularly during periods of divided government.
See Daniel A. Crane, Debunking Humphrey’s
Executor, 83 Geo. Wash. L. Rev. 1835, 1854 (2015). So
too the Nuclear Regulatory Commission stymying the
Department of Energy’s efforts to close Yucca
Mountain. See In re Aiken Cty., 645 F.3d at 448
(Kavanaugh, J., dissenting).
More recent examples abound. Consider the efforts
by three Consumer Product Safety Commission
(“CPSC”) Commissioners appointed by the prior
Administration to actively thwart the current
President’s policies. See Gov’t Stay App. at 7–9, 19,
Trump v. Boyle, No. 25A11 (U.S., filed July 2, 2025).
The National Labor Relations Board (“NLRB”) and
Merit Systems Protection Board (“MSPB”) offer
similar cautionary tales. See Harris, 2025 WL 980278,
at *19 (Walker, J., concurring) (detailing harms from
reinstatement of removed officials).
That is no small thing. “By one count, across all
subject matter areas, 48 agencies have heads (and
16
below them hundreds more inferior officials)
removable only for cause.” Seila Law, 591 U.S. at 276
(Breyer, J., dissenting) (citation omitted); see Free
Enter. Fund, 561 U.S. at 549–56 (Breyer, J.,
dissenting) (Appendix A listing agencies). “Statute
after statute establishing such entities instructs the
President that he may not discharge their directors
except for cause[.]” Seila Law, 591 U.S. at 261 (Breyer,
J., dissenting).
These free-floating administrative bodies are, “in
effect, a headless fourth branch of the U.S.
Government.”9 PHH Corp., 881 F.3d at 165
(Kavanaugh, J., dissenting). And they “possess
extraordinary authority over vast swaths of American
economic and social life—from securities to antitrust
to telecommunications to labor to energy. The list goes
on.” Id. at 170 (Kavanaugh, J., dissenting). “Such a
system of disembodied independent agencies with
enormous power over the American people and
American economy” breaks the Constitution’s promise
of “democratic accountability” and runs counter to our
Nation’s history and tradition. Consumers’ Rsch., 145
S. Ct. at 2517–18 (Kavanaugh, J., concurring). And as
this Court has suggested, irreparable harm flows from
allowing agency heads to retain their positions
9 As the now-FTC Chairman has observed: “Americans cannot
vote us out when we get it wrong. And Congress has tried to
insulate us from the one person in the Executive Branch whom
the people can vote out[.]” Dissenting Statement of
Commissioner Andrew Ferguson, In the Matter of the NonCompete Clause Rule, Matter No. P201200, at 7 (June 28, 2024),
https://www.ftc.gov/system/files/ftc_gov/pdf/fergusonnoncompete-dissent.pdf.
17
against the President’s wishes. See Wilcox, 145 S. Ct.
at 1416–17; Boyle, 145 S. Ct. at 2654. This state of
affairs should not stand.
IV.
The Time Has Come to Inter Humphrey’s
Executor.
This Court should “place[] a tombstone on”
Humphrey’s Executor that “no one can miss.” Loper
Bright, 603 U.S. at 417 (Gorsuch, J., concurring).
“[S]tare decisis should be no barrier to overruling”
Humphrey’s Executor.10 Andrew M. Grossman & Sean
Sandoloski, The End of Independent Agencies?
Restoring Presidential Control of the Executive
Branch, 22 Federalist Soc’y Rev. 216, 223 (2021).
A. Humphrey’s Was Poorly Reasoned.
Humphrey’s Executor was not only poorly reasoned
but its constitutional holding has become lonelier with
time. See generally Seila Law, 591 U.S. at 243–51
(Thomas, J., concurring in part, dissenting in part)
(explaining why). It “laid the foundation for a
fundamental departure from our constitutional
structure with nothing more than handwaving and
obfuscating phrases such as ‘quasi-legislative’ and
‘quasi-judicial.’” Id. at 246 (Thomas, J., concurring in
part, dissenting in part). All in “six quick pages devoid
10 In any event, “it may be that stare decisis is not even applicable
in this context; because Myers has never been overruled, the
Court’s precedents on removal power could be viewed as
conflicting, requiring the Court to pick one line or the other.”
Grossman & Sandoloski, 22 Federalist Soc’y Rev. at 223; see
Harris, 2025 WL 980278, at *7 (Walker, J., concurring).
18
of textual or historical precedent[.]” Morrison, 487
U.S. at 726 (Scalia, J., dissenting).
On its terms, “Humphrey’s Executor permitted
Congress to give for-cause removal protections to a
multimember body, balanced along partisan lines,
that performed legislative and judicial functions and
was said not to exercise any executive power.” Seila
Law, 591 U.S. at 216. In upholding the FTC
Commissioners’
statutory
for-cause
removal
protections, the Humphrey’s Court placed great
weight on its view that the FTC’s “duties are neither
political nor executive, but predominantly quasijudicial and quasi-legislative.” 295 U.S. at 624. It
described the 1935 FTC as acting “as a legislative or
as a judicial aid.”11 Id. at 628. “Such a body,” the Court
found, “cannot in any proper sense be characterized as
an arm or an eye of the executive.” Id. Based upon this
understanding of the 1935 FTC, the Court concluded
that this administrative body did not “exercise
executive power in the constitutional sense.” Id. And
thus FTC Commissioners “occup[y] no place in the
executive department and . . . exercise[] no part of the
Cf. Powers and Duties of the Fed. Trade Comm’n in the
Conduct of Investigations, 34 Op. Att’y Gen. 553, 557 (1925) (“A
main purpose of the Federal Trade Commission Act was to
enable Congress, through the Trade Commission, to obtain full
information concerning conditions in industry to aid it in its duty
of enacting legislation.”).
11
19
executive power vested by the Constitution in the
President.”12 Id.
Humphrey’s thereby “approved the concept of an
agency that was controlled by (and thus within) none
of the Branches.” Mistretta v. United States, 488 U.S.
361, 423 (1989) (Scalia, J., dissenting). It “relies on
one key premise: the notion that there is a category of
‘quasi-legislative’ and ‘quasi-judicial’ power that is not
exercised by Congress or the Judiciary, but that is also
not part of ‘the executive power vested by the
Constitution in the President.’”13 Seila Law, 591 U.S.
at 247 (Thomas, J., concurring in part, dissenting in
part) (quoting Humphrey’s Executor, 295 U.S. at 628).
12 This understanding of the 1935 FTC’s powers was informed by
the parties’ briefs. The brief for Humphrey’s Executor described
the FTC as “a legislative agent of Congress and an agent of the
Courts.” Br. for Samuel Rathbun, Executor, 1935 WL 32964, at
*47 (filed Mar. 19, 1935). The brief asserted that the FTC’s
activities as a “direct agent of Congress is perhaps the most
important single function performed by the Commission,”
“estimat[ing] that approximately one-half of the total amount
expended by the Commission has been spent on account of
investigations undertaken as such an agent of Congress in aid of
legislation[.]” Id. at *44–*46. The government, for its part,
effectively acknowledged that the FTC’s primary duties were
conducting investigations and submitting “Reports to Congress
on special topics[.]” Br. for the United States, 1935 WL 32965, at
*24–26 (filed April 6, 1935).
“Remarkably, the [Humphrey’s] Court did not pause to
examine how a purpose to create a body ‘subject only to the
people of the United States’—that is, apparently, beyond control
of the constitutionally defined branches of government—could
itself be sustained under the Constitution.” Peter Strauss, The
Place of Agencies in Government: Separation of Powers and the
Fourth Branch, 84 Colum. L. Rev. 573, 611–12 (1984).
13
20
“The problem is that the [Humphrey’s] Court’s
premise was entirely wrong.” Id. (Thomas, J.,
concurring in part, dissenting in part). “The allocation
of powers in the Constitution is absolute[.]” Ass’n of
Am. R.R., 575 U.S. at 69 (Thomas, J., concurring).
As this Court has recognized, Humphrey’s
“conclusion that the FTC did not exercise executive
power has not withstood the test of time.” Seila Law,
591 U.S. at 216 n.2. In whichever manner one chooses
to describe the vast and varied powers wielded by
independent agencies, “under our constitutional
structure” all of those powers “must be exercises of”
Article II executive power.14 City of Arlington, 569
U.S. at 304 n.4 (citing U.S. Const. art. II, §1, cl. 1); see
Arthrex, 594 U.S. at 17. Indeed, “[i]t is hard to dispute
that the powers of the FTC at the time of Humphrey’s
Executor would at the present time be considered
‘executive,’ at least to some degree.” Seila Law, 591
U.S. at 216 n.2 (cleaned up). Therefore, because these
entities exercise executive power, “the so-called
independent agencies are necessarily part of the
Executive Branch, not some headless fourth branch.”
J.A. 134 (Rao, J., dissenting). Accordingly, these
bodies must be subject to presidential control, which
necessarily entails at-will removal power.
In short, “consent of the governed is a sham if an
administrative agency, by design, does not
14 “Congress lacks the power to delegate to Executive Branch
officers either the legislative power or the judicial power.”
Fleming, 987 F.3d at 1116 (Rao, J., concurring in part, dissenting
in part) (citing Whitman v. Am. Trucking Ass’ns, 531 U.S. 457,
472 (2001); Stern v. Marshall, 564 U.S. 462, 484 (2011)).
21
meaningfully answer for its policies to either of the
elected branches.” PHH Corp., 881 F.3d at 137
(Henderson, J., dissenting). But that is what
Humphrey’s Executor allows. See Ruberoid Co., 343
U.S. at 487–88 (Jackson, J., dissenting). That cannot
be squared with Article II vesting of all executive
power in the President. This “demonstrably erroneous
interpretation of the Constitution” should be
jettisoned for that reason alone. Gamble v. United
States, 587 U.S. 678, 719 (2019) (Thomas, J.,
concurring).
B. Humphrey’s Executor Cannot Be Squared
with This Court’s Modern Precedent.
Over a series of cases, this “Court has repudiated
almost every aspect of Humphrey’s Executor,” id. at
239 (Thomas, J., concurring in part and dissenting in
part), “eviscerated its reasoning and rejected attempts
to extend it to new situations,” J.A. 132 (Rao, J.,
dissenting) (cleaned up). That process began over
twenty-five years ago in Morrison, which jettisoned
Humphrey’s Executor’s fiction of free-floating “quasijudicial” and “quasi-judicial” power unmoored from
any single branch of government. See Morrison, 487
U.S. at 689–91 & nn. 28, 30. “Morrison expressly
repudiated the substantive reasoning of Humphrey’s
Executor.” Seila Law, 591 U.S. at 250 n.4 (Thomas, J.,
concurring in part, dissenting in part). Cf. id. at 217
(majority op.). Indeed, “all Members of the Court who
heard Morrison rejected
the
core
rationale
of Humphrey’s Executor.” Id. at 249 (Thomas, J.,
concurring in part, dissenting in part); see Morrison,
487 U.S. at 725 (Scalia, J., dissenting).
22
Then came Free Enterprise Fund, which held that
“multilevel protection from removal” for Officers “is
contrary to Article II’s vesting of the executive power
in the President.” 561 U.S. at 484. Its reasoning
marked a further shift away from Humphrey’s and
toward Myers. See In re Aiken Cty., 645 F.3d at 444–
46 (Kavanaugh, J., concurring) (listing examples).
Free Enterprise Fund characterized Myers as a
“landmark” decision. See Free Enter. Fund, 561 U.S.
at 492. “And it reaffirmed Myers’ ‘principle that
Article II confers on the President “‘the general
administrative control of those executing the laws,’
including the removal power.” Harris, 2025 WL
980278, at *10 & n.107 (Walker, J., concurring)
(quoting Free Enter. Fund, 561 U.S. at 492 (quoting
Myers, 272 U.S. at 164)). This “created further tension
(if not outright conflict) with Humphrey’s Executor.”15
Seila Law, 591 U.S. at 249 (Thomas, J., concurring in
part, dissenting in part).
Next, in Seila Law this Court expressly cabined
Humphrey’s Executor to “multimember expert
agencies that do not wield substantial executive
power[.]” Id. at 218 (majority op.). For that reason,
after Seila Law “Humphrey’s Executor does not even
satisfy its own exception.” Id. at 250 (Thomas, J.,
concurring in part, dissenting in part). With Seila
Law, this Court “repudiated almost every aspect
Free Enterprise Fund may “be read to undermine the
constitutionality of any removal restriction that prevents the
President from controlling or supervising execution of the laws.”
Rao, 65 Ala. L. Rev. at 1208.
15
23
of Humphrey’s Executor.” Id. at 239 (Thomas, J.,
concurring in part, dissenting in part).
Collins continued to chip away at whatever
remained of Humphrey’s Executor’s already cracked
foundation, applying Seila Law and observing that
“the nature and breadth of an agency’s authority is
not dispositive in determining whether Congress may
limit the President’s power to remove its head.” 594
U.S. at 251–52; see id. at 273 (Kagan, J., concurring
in part, dissenting in part) (noting “majority’s
extension of Seila Law’s holding”). “After Collins, the
only question left on the table appears to be whether
an officer protected by a removal restriction exercises
executive power.” Grossman & Sandoloski, 22
Federalist Soc’y Rev. at 222.
Underscoring this, citing Myers, this Court
recently noted that it has “held that Congress lacks
authority to control the President’s ‘unrestricted
power of removal’ with respect to ‘executive officers of
the United States whom he has appointed.’” Trump,
603 U.S. at 608–09 (quoting Myers, 272 U.S. at 106,
176). This Court reiterated that “[t]he President’s
management of the Executive Branch requires him to
have unrestricted power to remove the most
important of his subordinates . . . in their most
important duties.” Id. at 597 (cleaned up). And this
Court underscored that the at-will removal authority
is one of the President’s “core constitutional powers”
“within his exclusive sphere of constitutional
authority.” Id. at 606, 609. Assuming one was even
needed, that decision may well have put the nail in
Humphrey’s Executor’s coffin.
24
Most recently, a majority of this Court ghosted
Humphrey’s in its interim docket decisions staying
district court injunctions blocking the President’s atwill removal of the heads of the NLRB, MSPB, and
CPSC. See Wilcox, 145 S. Ct. at 1416–17; Boyle, 145 S.
Ct. at 2654.
In sum, Humphrey’s Executor has “been mostly
ignored in recent years by Supreme Court
majorities—like
a
benched
quarterback
watching Myers (and the original meaning of the
Constitution) from the sideline,” Harris, 2025 WL
980278, at *13 (Walker, J., concurring), and “seems
nigh impossible to square with the Supreme Court’s
current separation-of-powers sentiment,” Consumers’
Rsch., 98 F.4th at 649 (Willett, J., concurring in the
denial of rehearing en banc). And the degree to which
Humphrey’s “runs against mainstream currents in
our law regarding the separation of powers,” Loper
Bright, 603 U.S. at 427 (Gorsuch, J., concurring),
further counsels in favor of squarely overruling it.
C. Today’s FTC Does
Humphrey’s Executor.
Not
Fit
Within
Even on its own terms, Humphrey’s holding does
not cover today’s FTC. “Rightly or wrongly, the
[Humphrey’s] Court viewed the FTC (as it existed in
1935) as exercising ‘no part of the executive power.’”16
Seila Law, 591 U.S. at 215. Indeed, the Humphrey’s
16 “[W]hat matters is the set of powers the Court considered as
the basis for its decision [in Humphrey’s Executor], not any latent
powers that the agency may have had not alluded to by the
Court.” Seila Law, 591 U.S. at 219 n.4.
25
Court “seem[s] to have assumed” the 1935 FTC
“exercised no governmental power whatever, but
merely assisted Congress and the courts in the
performance of their functions.” Mistretta, 488 U.S. at
423 (Scalia, J., dissenting). But regardless of whether
Humphrey’s characterization of the FTC’s activities
was true in 1935, “the FTC has evolved significantly
over time.” Consumers’ Rsch. v. Consumer Prod.
Safety Comm’n, 91 F.4th 342, 357 (5th Cir. 2024)
(Jones, J., concurring in part, dissenting in part).
The 1935 FTC did not remotely resemble today’s
FTC. And the 1935 FTC’s powers are not in the same
ballpark as those the FTC has today. “[T]he FTC of
today wields vastly more executive power than it did
when the Supreme Court first considered its
constitutionality
during
FDR’s
first
term.”
Consumers’ Rsch., 98 F.4th at 648 (Willett, J.,
concurring in denial of rehearing en banc). It is
beyond dispute “that FTC commissioners are
principal officers who exercise ‘substantial executive
power.’” J.A. 133 (Rao, J., dissenting); see J.A. 108–14.
(describing FTC’s executive powers).
When Humphrey’s Executor was decided the FTC
did not have consumer protection authority,
independent litigating authority, the power to seek
injunctions and money damages directly in federal
court, or to bring contempt actions. See Crane, 83 Geo.
Wash. L. Rev. at 1864. For that matter, the 1935 FTC
lacked power to seek any retrospective relief, such as
restitution and civil penalties. See Heater v. FTC, 503
F.2d 321, 321–22 (9th Cir. 1974); FTC v. Cement Inst.,
333 U.S. 683, 706 (1948). And while the 1935 FTC
issued
procedural
“rules”
for
its
inhouse
administrative proceedings, see, e.g., Griffiths
26
Hughes, Inc. v. FTC, 63 F.2d 362, 363 (D.C. Cir. 1933),
“the agency itself did not assert the power to
promulgate substantive rules until 1962,” Nat’l
Petroleum Refiners Ass’n v. FTC, 482 F.2d 672, 693 &
n.27 (D.C. Cir. 1973).
Congress did not grant the FTC any authority to
bring enforcement actions in federal court until 1938.
It was not until three years after Humphrey’s that
Congress for the first time granted the FTC authority
to seek preliminary injunctive relief in federal court
for violations of Section 12 of the FTC Act. See Pub. L.
No. 447, § 13(a), 52 Stat. 111, 115 (1938) (codified at
15 U.S.C. § 53(a)). In 1973, Congress expanded the
scope of that authority to cover Section 5, also
granting FTC power to seek permanent injunctions
and directly enforce subpoenas. See Pub. L. No. 93153, §§ 408(b), (f), 87 Stat. 576, 591–92 (1973)
(codified at 15 U.S.C. § 53(b)).
In 1975, Congress further empowered FTC to seek
substantial civil penalties for knowing violations of
Section 5.17 See Pub. L. No. 93-637, § 205(a), 88 Stat.
2183, 2200–01 (1975) (codified at 15 U.S.C. § 45(m)).
That legislation also provided the FTC with
authorization to obtain “restitution” and other
backward-looking remedies in federal court, as well as
authorized FTC to issue regulations banning what it
deemed “unfair or deceptive” business practices. See
id. §§ 202(a), 206(a), 88 Stat. at 2193, 2201 (codified
17 Today, FTC uses “Notices of Penalty Offenses” to trigger its
authority to seek civil penalties for first-time violators. See FTC,
Notice
of
Penalty
Offenses,
https://www.ftc.gov/enforcement/penalty-offenses.
27
at 15 U.S.C. §§ 57a, 57b). Since then, Congress has
granted the FTC authority to seek civil penalties for
violations of other statutes and regulations it
promulgates. See, e.g., 15 U.S.C. §§ 1681s(a)(2),
6502(c), 6505(d). Civil penalty authority is “a
quintessentially executive power not considered in
Humphrey’s Executor.” Seila Law, 591 U.S. at 219.
Today’s FTC “has enforcement or administrative
responsibilities under more than 80 laws.”18 The
agency has sweeping power to investigate companies
using compulsory process. See 15 U.S.C. § 49
(subpoenas); id. § 57b-1(c) (civil investigative
demands). And it routinely prosecutes companies in
federal court.19 See also Morrison, 487 U.S. at 692 n.31
(noting FTC’s “prosecutorial power[]” “to bring civil
actions to recover civil penalties” (citing 15 U.S.C. §
45(m)); FTC v. Facebook, Inc., 581 F. Supp. 3d 34, 63
(D.D.C. 2022) (finding “prosecutor” is “best analogy”
for Commissioner voting to bring enforcement action).
See generally AMG Capital Mgmt., LLC v. FTC, 593
U.S. 67, 72–74 (2021).
The FTC has a “Criminal Liaison Unit [that] helps
prosecutors bring more criminal consumer fraud
18 FTC, Legal Library: Statutes, https://www.ftc.gov/legallibrary/browse/statutes.
19 The FTC also has inhouse enforcement powers and “houses
(and by design) both prosecutorial and adjudicative activities.”
Axon v. FTC, 598 U.S. 175, 189 (2023). The cease-and-desist
orders it issues become final and enforceable without Article III
involvement in certain circumstances. See 15 U.S.C. §§ 45(g), (l).
28
cases.”20 The FTC has even brought court actions
resulting in incarceration. E.g., FTC v. Cardiff, No.
18-2104, 2020 U.S. Dist. LEXIS 137800, at *22–24
(C.D. Cal. July 24, 2020) (granting FTC’s
incarceration request). And the FTC itself has been
appointed as a “special prosecutor” to prosecute a
criminal contempt action. FTC v. Am. Nat’l Cellular,
868 F.2d 315, 322–23 (9th Cir. 1989). The FTC even
engages in foreign-affairs activities and is statutorily
empowered to “provid[e] assistance to a foreign law
enforcement agency[.]” 15 U.S.C. § 46(j)(2).
In sum, today’s “FTC bears little resemblance to
the” administrative body described by this Court in
Humphrey’s Executor, Crane, 83 Geo. Wash. L. Rev.
at 1870, and “has essentially become the executive
agency that the Humphrey’s Executor Court denied it
was,” id. at 1839. That is yet another reason to jettison
Humphrey’s in toto.
D. The Sky Will Not Fall If This Court Erects
a Tombstone for Humphrey’s Executor.
Nor would overruling Humphrey’s Executor have
disruptive consequences or upset reliance interests.
See Grossman & Sandoloski, 22 Federalist Soc’y Rev.
at 224. That is because “Humphrey’s Executor is not
necessary to the existence of any particular agency.”
In re Aiken Cty., 645 F.3d at 446 n.5 (Kavanaugh, J.,
concurring). And “the remedy for holding an
independent agency unconstitutional under Article II
20
FTC,
Criminal
Liaison
https://www.ftc.gov/enforcement/criminal-liaison-unit.
Unit,
29
is not to abolish the agency.” Id. (Kavanaugh, J.,
concurring) (citing Free Enterprise Fund, 561 U.S. at
508–09). It is instead to “giv[e] the elected and
accountable President greater control over the agency
(by making the heads of agencies removable at will,
not for cause).” Id. (Kavanaugh, J., concurring).
“[B]oth Free Enterprise Fund and Seila Law adopt
a strong—perhaps insurmountable—presumption
that a removal restriction may be severed from the
remainder of a law and an agency’s structure and
powers thereby left otherwise unchanged.” Grossman
& Sandoloski, 22 Federalist Soc’y Rev. at 224; see
Seila Law, 591 U.S. at 233–38; Free Enter. Fund, 561
U.S. at 508–10. And Collins takes reliance interests
“off the table.” Grossman & Sandoloski, 22 Federalist
Soc’y Rev. at 224; see Collins, 594 U.S. at 257. Under
Collins, actions taken by agency officials protected by
unconstitutional removal restrictions are not void ab
initio and retrospective relief will almost never be
available.21 See 594 U.S. at 257–61.
This means that “even an outright overruling of
Humphrey’s Executor and what it came to stand for
would upset no one’s reliance on the work of
independent agencies to date.” Grossman &
Sandoloski, 22 Federalist Soc’y Rev. at 224. For that
matter, “Humphrey’s Executor does not affect the size
and scope of the administrative state.” In re Aiken
Cty., 645 F.3d at 446 n.5 (Kavanaugh, J., concurring).
21 “[A]n unconstitutional provision is never really part of the body
of governing law (because the Constitution automatically
displaces any conflicting statutory provision from the moment of
the provision’s enactment)[.]” Collins, 594 U.S. at 259.
30
It is thus hard to see why “this modest step to restore
democratic accountability to our federal bureaucracy,”
Consumers’ Rsch., 98 F.4th at 650 (Ho, J., dissenting
from denial of rehearing en banc), is objectionable.
Whatever putative “reliance” interest unelected
“heads” of free-floating administrative bodies may
claim in tenure protections that shield them from
accountability, any such interest pales in comparison
to the People’s interest in representative selfgovernment. “Continued reliance on Humphrey’s
Executor to justify the existence of independent
agencies creates a serious, ongoing threat to our
Government’s design.” Seila Law, 591 U.S. at 251
(Thomas, J., concurring in part, dissenting in part).
This, too, counsels in favor of putting Humphrey’s
Executor out to pasture for good.
Finally, this Court should not be swayed by any
parade-of-horribles handwaving about the Federal
Reserve. Any suggestion that overruling Humphrey’s
Executor would somehow require invalidating the forcause removal protections for Federal Reserve
Members and imperil markets lacks merit. As this
Court has repeatedly suggested, whatever its merits,
the Federal Reserve is sui generis and, unlike FTC,
appears to have analogs tracing back to the Founding.
“The Federal Reserve is a uniquely structured,
quasi-private entity that follows in the distinct
historical tradition of the First and Second Banks of
the United States.” Wilcox, 145 S. Ct. at 1417 (citing
Seila Law, 591 U.S. at 222, n.8). It “should not be seen
as a model for other Government bodies.” Consumer
Fin. Prot. Bureau v. Cmty. Fin. Servs. Ass’n of Am.,
Ltd., 601 U.S. 416, 467 n.16 (2024) (Alito, J.,
31
dissenting). For good reason: Unlike law enforcement
agencies, “the Fed’s most important responsibility is
administration of the money supply,” which “is not an
executive function[.]” Consumers’ Rsch., 98 F.4th at
657 (Oldham, J., dissenting from denial of rehearing
en banc).
This Court should not “compromise when it comes
to our Government’s structure.” Seila Law, 591 U.S.
at 251 (Thomas, J., concurring in part, dissenting in
part). There is no reason to do so here. Humphrey’s
Executor has haunted our constitutional halls for far
too long; it is time it be allowed to rest in peace.
CONCLUSION
This Court should reverse the decision below and
squarely overrule Humphrey’s Executor.
Respectfully submitted,
Michael Pepson
Counsel of Record
AMERICANS FOR PROSPERITY FOUNDATION
4201 Wilson Blvd., Ste. 1000
Arlington, VA 22203
(571) 329-4529
mpepson@afphq.org
Counsel for Amicus Curiae
October 16, 2025
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.