Amicus Curiae Brief — Donald J. Trump, President of the United States, et al., Petitioners v. Rebecca Kelly Slaughter
Supreme Court briefOct 17, 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 Before Judgment to the
United States Court of Appeals for the D.C.
Circuit
—————
BRIEF FOR AMICUS CURIAE CATHY HARRIS
IN SUPPORT OF NEITHER PARTY
—————
NATHANIEL A.G. ZELINSKY
NEAL KUMAR KATYAL
Counsel of Record
SAMANTHA BATEMAN
JESSICA C. HUANG
MARY L. DOHRMANN†
MILBANK LLP
JAMES I. PEARCE††
1101
New York Ave., NW
WASHINGTON LITIGATION
Washington, DC 20005
GROUP
(202) 835-7500
1717 K St. NW
nkatyal@milbank.com
Suite 1120
Washington, DC 20006
Counsel for Amicus Curiae Cathy Harris
(Additional counsel listed on inside cover)
MICHAEL KATOR
KERRIE DIANE RIGGS
JEREMY D. WRIGHT
KATOR, PARKS, WEISER
& WRIGHT, PLLC
1150 Connecticut Ave.,
NW
Suite 705
Washington, DC 20036
LINDA MARIE CORREIA
CORREIA & PUTH, PLLC
1400 16th Street, NW
Suite 450
Washington, DC 20036
† Admitted only in New
York; practicing under
the supervision of D.C.
Bar Members.
†† Admitted only in New
York and North Carolina; practicing under
the supervision of D.C.
Bar Members.
Counsel for Amicus Curiae Cathy Harris
TABLE OF CONTENTS
Page
INTERESTS OF AMICUS CURIAE .......................... 1
INTRODUCTION ........................................................ 2
STATEMENT .............................................................. 6
A. The Merit Systems Protection Board................ 6
B. Harris v. Bessent .............................................. 10
SUMMARY OF ARGUMENT ................................... 13
ARGUMENT ............................................................. 15
I. THE COURT SHOULD NOT INVALIDATE
REMOVAL PROTECTIONS FOR MEMBERS OF
ADJUDICATORY BODIES .................................... 15
II. THE MERIT SYSTEMS PROTECTION
BOARD IS A PURELY ADJUDICATORY BODY ...... 27
CONCLUSION .......................................................... 32
(i)
ii
TABLE OF AUTHORITIES
Page(s)
CASES:
Am. Ins. Co. v. 356 Bales of Cotton,
26 U.S. 511 (1828) ........................................... 15, 16
Blodgett v. Holden,
275 U.S. 142 (1927) ............................................... 24
Bowsher v. Synar,
478 U.S. 714 (1986) ................................................. 9
Collins v. Yellen,
594 U.S. 220 (2021) ............................................... 23
Ex parte Bakelite Corp.,
279 U.S. 438 (1929) ..................1, 3, 4, 15, 17, 21, 28
FCC v. Consumers’ Rsch.,
145 S. Ct. 2482 (2025) ........................................... 22
Free Enter. Fund v. PCAOB,
537 F.3d 667 (D.C. Cir. 2008).......................... 23, 24
Free Enter. Fund v. PCAOB,
561 U.S. 477 (2010) ......................................... 15, 23
Freytag v. Comm’r,
501 U.S. 868 (1991) ................................... 15, 21, 30
Glidden Co. v. Zdanok,
370 U.S. 530 (1962) ............................................... 18
Harris v. Bessent,
775 F. Supp. 3d 164 (D.D.C. 2025)............ 10, 11, 29
Harris v. Bessent,
No. 25-5037, 2025 WL 1021435 (D.C. Cir.
Apr. 7, 2025) (en banc) .......................................... 12
iii
TABLE OF AUTHORITIES—Continued
Page(s)
Harris v. Bessent,
No. 25-5037, 2025 WL 980278 (D.C. Cir.
Mar. 28, 2025) ............................................ 11, 12, 28
Humphrey’s Executor v. United States,
295 U.S. 602 (1935) ...... 1, 3, 4, 10, 16, 18, 19, 21, 24
Kaplan v. Conyers,
733 F.3d 1148 (Fed. Cir. 2013) (en banc) ................ 8
McAllister v. United States,
141 U.S. 174 (1891) ........................................... 4, 17
Myers v. United States,
272 U.S. 52 (1926) ................................. 4, 17, 18, 29
N. Pipeline Const. Co. v. Marathon
Pipe Line Co.,
458 U.S. 50 (1982) ................................................. 15
Ortiz v. United States,
585 U.S. 427 (2018) ............................. 15, 21, 27, 30
Perry v. MSPB,
582 U.S. 420 (2017) ................................................. 9
SEC v. Jarkesy,
603 U.S. 109 (2024) ................................... 15, 16, 28
Seila L. LLC v. CFPB,
591 U.S. 197 (2020) ............................... 2, 19, 23, 25
Trump v. Wilcox,
145 S. Ct. 1415 (2025) (per curiam) ................ 12, 13
United States v. Arthrex, Inc.,
594 U.S. 1 (2021) ................................................... 29
iv
TABLE OF AUTHORITIES—Continued
Page(s)
United States v. Perkins,
116 U.S. 483 (1886) ......................................... 11, 29
Wiener v. United States,
357 U.S. 349 (1958) .....................1, 3, 10, 14, 19, 20,
21, 22, 23, 24, 27, 28
Williams v. United States,
289 U.S. 553 (1933) ............................... 4, 18, 19, 21
Withrow v. Larkin,
421 U.S. 35 (1975) ................................................. 24
CONSTITUTION:
U.S. Const. art. III, § 1 ............................................. 18
STATUTES:
5 U.S.C. § 1201 ........................................................... 8
5 U.S.C. § 1202(a) ....................................................... 8
5 U.S.C. § 1202(b) ....................................................... 8
5 U.S.C. § 1202(c) ....................................................... 8
5 U.S.C. § 1202(d) ....................................................... 8
5 U.S.C. § 1204(a)(3) .............................................. 8, 9
5 U.S.C. § 1204(e)(2)(A) .............................................. 9
5 U.S.C. § 2302(b)(1)(E) ............................................. 8
5 U.S.C. § 2302(b)(8) .................................................. 8
5 U.S.C. § 3592(a) ....................................................... 8
5 U.S.C. § 7511(b) ....................................................... 8
5 U.S.C. § 7511(b)(2) .................................................. 8
v
TABLE OF AUTHORITIES—Continued
Page(s)
5 U.S.C. § 7703 ........................................................... 9
10 U.S.C. § 942(c) ..................................................... 30
26 U.S.C. § 7441 ....................................................... 30
26 U.S.C. § 7443(e) ................................................... 30
26 U.S.C. § 7743(f) .................................................... 30
28 U.S.C. § 171(a) ..................................................... 30
28 U.S.C. § 172(a) ..................................................... 31
28 U.S.C. § 176(a) ..................................................... 31
28 U.S.C. § 331 ........................................................... 9
38 U.S.C. § 7253(a) ................................................... 30
38 U.S.C. § 7253(b) ................................................... 30
38 U.S.C. § 7253(f)(1) ............................................... 30
48 U.S.C § 1424b(a) .................................................. 30
48 U.S.C § 1614(a) .................................................... 30
48 U.S.C § 1821(b)(1) ............................................... 30
Act of Apr. 7, 1798,
ch. 28, 1 Stat. 549 .................................................. 16
Act of Feb. 24, 1855,
ch. 122, 10 Stat. 612 .............................................. 16
Act of June 10, 1890,
ch. 407, 26 Stat. 131 .............................................. 16
Act of May 28, 1926,
Pub. L. No. 69-304, 44 Stat. 669 ........................... 17
vi
TABLE OF AUTHORITIES—Continued
Page(s)
An Act Creating a United States court for
China and Prescribing the jurisdiction
thereof,
Pub. L. No. 59-403, 34 Stat. 814 (1906) ................ 16
An Act to Amend Title 28, United States Code,
Pub. L. No. 83-158, 67 Stat. 226 (1953) ................ 18
An Act to provide for the Government of the
Territory North-West of the river Ohio,
ch. 8, 1 Stat. 50 (1789) ........................................... 16
Civil Service Reform Act,
Pub. L. No. 95-454, 92 Stat. 1111 (1978) ................ 9
Federal Courts Improvement Act of 1982,
Pub. L. No. 97-164, 96 Stat. 25 ............................. 18
Pendleton Act,
ch. 27, 22 Stat. 403 (1883) ................................... 6, 7
Revenue Act of 1924,
Pub. L. No. 86-176, 43 Stat. 253 ..................... 16, 17
Whistleblower Protection Act of 1989,
Pub. L. No. 101-12, 103 Stat. 16 ....................... 9, 10
LEGISLATIVE MATERIALS:
H. Comm. on Post Office and Civil Serv., 94th
Cong., A Self-Inquiry into Merit Staffing:
Rep. of the Merit Staffing Rev. Team, U.S.
Civil Service Comm’n (Comm. Print 94-14,
June 1976)............................................................ 7, 8
vii
TABLE OF AUTHORITIES—Continued
Page(s)
Subcomm. on Manpower & Civil Serv., H.
Comm. on Post Office and Civil Serv., 94th
Cong., Documents Relating to Political Influence in Personnel Actions at the Small Business Administration (Comm. Print 94-4, July
1975) ......................................................................... 7
S. Rep. No. 95-969 (1978) ........................................... 8
OTHER AUTHORITIES:
The Merit Systems Protection Board’s Authority to Adjudicate Constitutional Questions
within an Administrative Proceeding, 49 Op.
O.L.C. (Sept. 26, 2025) (slip op.) ......................... 5, 6
Pers. Mgmt. Project, 1 Final Staff Report
(1977) ..................................................................... 25
Patricia Wallace Ingraham, The Foundation of
Merit: Public Service in American Democracy
(1995) ................................................................... 6, 7
INTERESTS OF AMICUS CURIAE1
Like Petitioner Rebecca Slaughter, amicus Cathy
Harris was unlawfully removed by the President
without cause. But Slaughter is a member of the Federal Trade Commission, an independent agency that
engages in investigations and policymaking. In contrast, Harris is a member of a purely “adjudicatory
body,” the Merit Systems Protection Board. Wiener v.
United States, 357 U.S. 349, 356 (1958).
The Merit Systems Protection Board hears appeals
by civil servants regarding the laws that Congress
passed to ensure a merit-based civil service, free from
partisan discrimination and whistleblower retaliation. Unlike the Federal Trade Commission and similar independent agencies, the Board can truly be
characterized as a “quasi judicial” entity. Humphrey’s
Executor v. United States, 295 U.S. 602, 629 (1935).
The Board does not launch investigations, promulgate
rules or regulations, fill up vague statutes, or otherwise engage in policymaking. Instead, the Board is a
quintessential “legislative court[ ],” Ex parte Bakelite
Corp., 279 U.S. 438, 449 (1929), that decides discrete
matters brought before it, applying law to fact in each
given case.
Neither Petitioner nor Respondent has an interest
in defending the constitutionality of purely adjudicatory entities like the Merit Systems Protection Board.
Slaughter is a member of the modern Federal Trade
Commission, which has the authority to launch
1 No counsel for a party authored the brief in whole or in part,
and no person or entity, other than the amicus curiae and her
counsel, made a monetary contribution to the preparation or submission of the brief.
(1)
2
investigations and make policy. Meanwhile, the Government has taken the maximalist position that all
for-cause removal statutes are unconstitutional, including for purely adjudicatory bodies, with the possible exception of the Federal Reserve Board and the
D.C. courts system. See U.S. Br. 23, 29.
This brief provides the Court with an important
middle-ground perspective. Even if the Court were to
trim back Humphrey’s Executor for the Federal Trade
Commission and other policymaking agencies that
perform functions other than adjudication, the Court
should preserve for-cause removal statutes for legislative courts, which stand on a unique and separate constitutional footing dating back to the Founding.
INTRODUCTION
For nearly a century and a half, Congress has established independent “agencies led by a group of
principal officers removable by the President only for
good cause.” Seila L. LLC v. CFPB, 591 U.S. 197, 204
(2020) (emphasis omitted). In its recent decisions, the
Court contrasted that established model for independent agencies with “novel” agency frameworks that
lack “a foundation in historical practice” and “clash[ ]
with constitutional structure.” Id. In Seila Law, this
Court even explained that Congress could lawfully
preserve the independence of the Consumer Financial
Protection Bureau—which engages in widescale policymaking and enforcement activities—by “converting” it “into a multimember agency.” Id. at 237.
The Court should not rush to invalidate the many
multimember boards and commissions that Congress,
in reliance on the Court’s longstanding precedent, has
established throughout the federal government. To be
sure, in light of past statements by members of the
3
Court and the Court’s decision to grant review in this
case, amicus recognizes that the Court may revisit
Humphrey’s Executor. Amicus also acknowledges the
constitutional concerns presented by independent
agencies engaging in regulatory and enforcement activities.
But whatever this Court decides with respect to
the Federal Trade Commission and other policymaking independent agencies, the Court should not invalidate purely “adjudicatory bod[ies]” that Congress has
chosen to house within the executive branch and
whose members are protected from arbitrary removal.
Wiener, 357 U.S. at 356. Often referred to as “legislative courts,” Ex parte Bakelite, 279 U.S. at 449, these
tribunals do not “bring civil enforcement suits against
private parties,” “promulgate binding rules,” or “investigate potential violations of the law,” U.S. Br. 10.
Instead, legislative courts perform “intrinsic judicial”
functions—deciding discrete cases brought before
them by applying law to facts. Wiener, 357 U.S. at
355.
There is a long history of legislative courts adjudicating three categories of disputes: (i) matters in the
territories; (ii) offenses committed by service members; and (iii) public rights. Well-known examples of
such courts include the Tax Court and the Court of
Claims.
Legislative courts are “quasi judicial,”
Humphrey’s Executor, 295 U.S. at 629, in that they
perform “judicial determination[s]” just like a court
does, but Congress may exercise its Article I authority
to house them in the executive branch. Ex parte Bakelite, 279 U.S. at 451.
The statutes protecting members of legislative
courts from arbitrary removal thus reflect a unique
historical tradition, dating to the Founding, and the
4
stare decisis values for these tribunals are particularly acute. On several occasions prior to Humphrey’s
Executor, the Court has recognized that Congress may
lawfully define the tenures of the members that serve
on such bodies. See Williams v. United States, 289
U.S. 553, 562 (1933); Ex parte Bakelite, 279 U.S. at
449; McAllister v. United States, 141 U.S. 174, 186
(1891). In Myers v. United States—the Court’s most
expansive exposition of the President’s removal
power—the Court acknowledged that at least some
legislative courts pose a distinct constitutional circumstance from the mine-run removal case. 272 U.S.
52, 158 (1926). And before this Court, even the government now implicitly acknowledges the unique status of legislative courts. See U.S. Br. 23.
In 1935, for better or worse, Humphrey’s Executor
analogized the Federal Trade Commission to “the legislative Court of Claims.” 295 U.S. at 629. Since then,
critics of Humphrey’s Executor have stressed that the
modern Federal Trade Commission’s powers in fact
mimic the core functions of executive branch agencies,
including policymaking and regulatory functions. Regardless of how this Court resolves the question of the
continued validity of Humphrey’s Executor as applied
to the Federal Trade Commission, the Court should
not invalidate the few true legislative courts existing
within the executive branch that perform purely adjudicatory functions. Traditional case-by-case adjudication, as opposed to a sweeping decision of this Court
that strays beyond the facts, is particularly prudent
in this unique area of the law.
The Merit Systems Protection Board—of which
amicus is a member—is one of the entities that falls
on the permissible side of the line: a legislative court
that Congress may permissibly house within the
5
executive branch, and whose members may receive a
modest degree of removal protection. The Board does
not launch investigations, make policy, or enforce its
own orders. Instead, the Board hears discrete cases
brought before it, applying the laws that Congress
passed regulating discrimination and retaliation in
matters of public employment to the facts of each case.
Today, other legislative courts whose members are
similarly protected from arbitrary removal include
the Tax Court, the Court of Appeals for Veteran
Claims, the Court of Appeals for the Armed Forces,
the District Courts for the U.S. Virgin Islands, the
Northern Mariana Islands, and Guam, and the Court
of Federal Claims. Amicus urges the Court—however
it rules—to preserve these tribunals and not adopt a
holding so broad as to encompass them, at least not
without full merits briefing and argument.
It is important to highlight what is at stake should
the Court invalidate removal protections for these adjudicators simply because they sit within the executive branch. The President could fire members of the
Tax Court—for example—in retaliation for decisions
ruling in favor of political adversaries. That is deeply
concerning—which is precisely why Congress has chosen to ensure that those who sit on legislative tribunals where the risk of partisan political interference
in the judicial process is most acute may receive protection from arbitrary removal.
These concerns are not abstract. The President
has already removed amicus from her position on the
Merit Systems Protection Board. The government has
recently terminated hundreds of civil servants in
ways that facially violate the civil service laws. And
in a remarkable development, the Office of Legal
Counsel recently issued an opinion directing the
6
Board how to rule in cases challenging those terminations. See The Merit Systems Protection Board’s Authority to Adjudicate Constitutional Questions within
an Administrative Proceeding, 49 Op. O.L.C. (Sept.
26, 2025) (slip op.). This is an astonishing assault on
the ability of the Board’s members to apply the law
without fear or favor. Whatever it decides with respect to the Federal Trade Commission, the Court
should avoid any decision that reaches out to decide
the independence of the Board and the handful of
purely adjudicatory tribunals within the federal government.
STATEMENT
A. The Merit Systems Protection Board
1. Cathy Harris is a member of an adjudicatory
body—the Merit Systems Protection Board—that reflects a centuries-long effort to combat patronage in
federal employment.
At the Founding, George Washington embraced
principles of merit-based service. Patricia Wallace Ingraham, The Foundation of Merit: Public Service in
American Democracy 17 (1995). But Thomas Jefferson took the position that “party service was a valid
criterion for appointment to,” and removal from, public service. Id. at 18. By the Civil War, a spoils system
had taken hold. The effects were “tragic,” undermining “the effectiveness of the Union army and” “federal
government” during the war. Id. at 22.
President Grant “ran on a reform platform,” but
his administration faced “pressure from members of
Congress looking for patronage appointments.” Id. at
24. In 1871, Congress authorized a short-lived Civil
Service Commission that shuttered two years later.
Id. After President Garfield’s assassination by a
7
would-be office-seeker, however, Congress passed the
Pendleton Act in 1883, which established a Civil Service Commission of three members removable by the
President at will. Id. at 26-27; ch. 27, 22 Stat. 403,
403.
The civil service initially encompassed only a portion of the federal workforce, Ingraham, supra, at 27,
and Presidents continued to use “patronage removals
and appointments” into the Twentieth Century, id. at
33; see id. at 46. Meanwhile, the “Civil Service Commission itself” soon became “a problem” because it
served inherently conflicting roles of “administer[ing]
and protect[ing] the merit system” while simultaneously “advis[ing] and assist[ing] the president in patronage matters.” Id. at 74.
Abuses in the Watergate Era brought matters to a
head. Contemporary investigations uncovered “flagrant violations” of merit principles for partisan “political interests,” creating employment processes that
“approximate[d] a patronage system.” Subcomm. on
Manpower & Civil Serv., H. Comm. on Post Office and
Civil Serv., 94th Cong., Documents Relating to Political Influence in Personnel Actions at the Small Business Administration 11, 13 (Comm. Print 94-4, July
1975).
The corruption extended to the Civil Service Commission itself. “[T]op Commission officials,” “including Commissioners,” improperly sought to place individuals in positions of employment; “Commission officials” succumbed to “high-level pressure” to engage in
patronage; and the Commission “failed to respond effectively” to “political interference in the operation of
the Federal merit system.” H. Comm. on Post Office
and Civil Serv., 94th Cong., A Self-Inquiry into Merit
Staffing: Rep. of the Merit Staffing Rev. Team, U.S.
8
Civil Service Comm’n 39, 46, 65 (Comm. Print 94-14,
June 1976).
2. President Jimmy Carter made civil service reform a component of his election campaign and spearheaded the passage of the Civil Service Reform Act.
Central to reform was creating a “strong and independent” Merit Systems Protection Board free of the
pressures that had plagued the old Commission. S.
Rep. No. 95-969, at *6-7 (1978), as reprinted in 1978
U.S.C.C.A.N. 2723, 2728-29.
Congress provided that the Board’s members “may
be removed by the President only for inefficiency, neglect of duty, or malfeasance in office.” 5 U.S.C.
§ 1202(d). The Board’s three members serve staggered seven-year terms, with no more than two belonging to the same political party. Id. §§ 1201,
1202(a)-(c).
The Board is a legislative court within the executive branch that adjudicates federal employee appeals, including claims of political discrimination and
whistleblower retaliation. Id. §§ 2302(b)(1)(E), (b)(8).
Its jurisdiction is circumscribed to avoid encroaching
on the President’s core prerogatives. The Board may
not hear appeals by political appointees, id. § 7511(b),
has limited authority regarding senior executive managers, id. § 3592(a), and cannot wade into national security issues, Kaplan v. Conyers, 733 F.3d 1148, 1166
(Fed. Cir. 2013) (en banc). In addition, the President
may exempt positions from the Board’s jurisdiction if
he determines a position is of a “policy-determining,
policy-making or policy-advocating character.”
5 U.S.C. § 7511(b)(2).
The Board does not make policy or bring enforcement actions. The Board may conduct “studies”
9
relating to the civil service, id. § 1204(a)(3), in much
the way the Judicial Conference issues annual reports
to Congress with “recommendations for legislation,”
28 U.S.C. § 331. But the Board lacks regulatory authority. Instead, the Board hears discrete cases involving civil servants, applying statutory law and
precedent to the specific facts brought before it. The
Board’s discrete decisions are in turn reviewable by
Article III courts, which is usually but not always the
Federal Circuit. See 5 U.S.C. § 7703; Perry v. MSPB,
582 U.S. 420, 423 (2017). The Board lacks authority
to enforce its own decisions.2
The Merit Systems Protection Board’s history confirms its purely adjudicatory purpose. The Board’s
predecessor—the Civil Service Commission—handled
both personnel management and adjudications. In
1978, Congress split the Commission into multiple entities, including: (1) the Office of Personnel Management, to manage the federal workforce as a true organ
of executive power; and (2) the Merit Systems Protection Board, as an adjudicatory authority. Civil Service Reform Act, Pub. L. No. 95-454, 92 Stat. 1111,
1119, 1121 (1978).
In 1989, Congress further cleaved off the Office of
Special Counsel—a single-director-led entity that investigates and prosecutes violations of civil service
rules—into a separate executive branch agency.
2 When originally established, the Board could order the withholding of pay from federal employees who refused to comply
with its decisions. 5 U.S.C. § 1204(e)(2)(A). But that mechanism
required the involvement of the Comptroller General, who is a
legislative officer. It became unconstitutional after Bowsher v.
Synar, 478 U.S. 714, 733-734 (1986), leaving the modern Board
without ability to enforce decisions unilaterally.
10
Whistleblower Protection Act of 1989, Pub. L. No. 10112, 103 Stat. 16. The result, today, is that the Board
is a purely “adjudicatory body.” Wiener, 357 U.S. at
356.
B. Harris v. Bessent
1. In 2022, Cathy Harris was nominated and confirmed as a member of the Merit Systems Protection
Board. Her term expires March 1, 2028. On February
10, 2025, Harris received an email stating the President had terminated her. The next day, she filed a
lawsuit, Harris v. Bessent, challenging her termination.
Before the district court, the government did not
contest: (i) that the Merit Systems Protection Board
“does not establish policy,” and does not “dictate or enforce policies regarding the federal workforce”; (ii)
that the Board “performs no investigations of external
parties and does not prosecute cases”; (iii) that the
“Board does not initiate disciplinary actions” and
lacks “enforcement units”; (iv) that it “does not order
other agencies to conduct investigations or to produce
written reports”; and (v) that “over 95% of the decisions” of the Board are “unanimous.” Dkt. No. 22-2,
at 7-9, Harris v. Bessent, No. 1:25-cv-00412 (D.D.C.
Feb. 23, 2025).
The district court ruled for Harris, finding that the
Board is a “traditional independent agency headed by
a multimember board.” Harris v. Bessent, 775 F.
Supp. 3d 164, 174 (D.D.C. 2025) (citation omitted).
According to the court, the Board’s “duties are ‘quasi
judicial,’ in that it conducts preliminary adjudications
of federal employees’ claims, which may then be appealed to Article III courts.” Id. at 176 (quoting
Humphrey’s Executor, 295 U.S. at 624). “The Board
11
does not regulate the conduct of private parties, nor
does it possess its own rulemaking authority except in
furtherance of its judicial functions.” Id. “It cannot
initiate its own personnel cases, but must instead passively wait for them to be brought.” Id. (quotation
marks and citation omitted).
The district court also explained that Congress has
unique authority to establish the Merit Systems Protection Board, in particular, because Congress has the
constitutional remit to “ ‘limit, restrict, and regulate
the removal’ ” of inferior officers and employees. Id.
at 177 (quoting United States v. Perkins, 116 U.S. 483,
485 (1886)). Congress exercised that power when it
enacted the Civil Service Reform Act—and the
Board’s “independence” is “structurally inseparable
from the” Act itself. Id.
2. The government appealed and sought a stay
pending appeal in the D.C. Circuit. At oral argument,
the government characterized the Merit Systems Protection Board as “predominantly an adjudicatory
body.” See Oral Arg. Tr. 12, Harris v. Bessent, No. 255037 (D.C. Cir., Mar. 18, 2025).
The panel granted the stay pending appeal. Harris v. Bessent, No. 25-5037, 2025 WL 980278 (D.C. Cir.
Mar. 28, 2025). There was no majority opinion. Judge
Walker reasoned that the Humphrey’s Executor
framework applies “if the agency in question is the
identical twin of the 1935” Federal Trade Commission. Id. at *13 (Walker, J., concurring).
Judge Henderson stated that the Merit Systems
Protection Board’s “powers are relatively more circumscribed” than other independent agencies. Id. at
*23 (Henderson, J., concurring).
12
Judge Millett dissented. She emphasized that, in
“the government’s own words, the MSPB is ‘predominantly an adjudicatory body.’ ” Id. at *30 (Millett, J.,
dissenting) (quoting oral argument transcript). The
Board “has no investigatory or prosecutorial role,” but
is instead “passive and must wait for appeals to be initiated.” Id. The Board “has no independent means of
enforcing its orders,” and does not make rules, except
those “akin to the federal rules of procedure and local
rules that courts adopt.” Id. at *30-31.
3. At Harris’s request, the en banc D.C. Circuit
vacated the panel’s order and denied the government’s
motion for a stay. See Harris v. Bessent, No. 25-5037,
2025 WL 1021435 (D.C. Cir. Apr. 7, 2025) (en banc).
The D.C. Circuit merits panel heard oral argument on
May 16, 2025, but has not yet issued a decision.
After the D.C. Circuit denied a stay, the government filed an application for a stay in this Court. See
Application, Trump v. Wilcox, 24A966 (U.S. Apr. 9.
2025). The government also asked the Court to construe its application as a request for certiorari before
judgment and hear the case in a special sitting in May
2025. Id. at 36-38.
Harris opposed a stay and certiorari before judgment. She explained that the D.C. Circuit had expedited proceedings and that waiting for the D.C. Circuit would allow that court to explain “the effect of ruling for the government on the Federal Reserve and
adjudicators like Tax Court judges.” Harris Response
at 39, Trump v. Wilcox, 24A966 (U.S. Apr. 15, 2025).
This Court granted the government’s stay pending
appeal but denied certiorari before judgment. According to the Court, “the Government faces greater risk
of harm from an order allowing a removed officer to
13
continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty.” Trump v. Wilcox, 145 S. Ct.
1415, 1415 (2025) (per curiam).
The Court did not opine on whether the Government was likely to succeed on the merits. The Court
instead stated that the President “may remove without cause executive officers who exercise” “power on
his behalf, subject to narrow exceptions recognized by”
“precedent[ ].” Id. But the Court determined that
whether the Merit Systems Protection Board “falls
within such a recognized exception” is a question “better left for resolution after full briefing and argument.” Id.
Justice Kagan dissented, joined by Justices Sotomayor and Jackson. Id. at 1416 (Kagan, J., dissenting).
4. On September 4, 2025, the Government filed an
application requesting a stay and seeking certiorari
before judgment in this case, Trump v. Slaughter, involving a member of the Federal Trade Commission
whom the President purported to remove without
cause. In response, Harris filed a conditional petition
for certiorari before judgment, Harris v. Bessent, No.
25-312 (U.S.), asking the Court to grant review in her
case if it granted Slaughter.
The Court granted certiorari before judgment in
Slaughter and denied it in Harris. This amicus brief
in support of neither party follows.
SUMMARY OF ARGUMENT
I. Amicus recognizes that the Court may revisit
Humphrey’s Executor and reexamine the significance
of the Federal Trade Commission and similar modernday multimember bodies that engage in core executive
14
functions, such as initiating enforcement actions and
regulating private parties. Amicus stands by her view
that Court should not overturn the longstanding
framework that allows Congress to structure multimember independent agencies.
Importantly, however, neither party before the
Court has an incentive to defend purely adjudicatory
bodies—such as the Merit Systems Protection Board
and the Tax Court—that reflect the venerable tradition of legislative courts. As a result, amicus urges
the Court—however it rules in this case—not to paint
with an overbroad brush and hold that every principal
officer outside of Article III must be removable at will.
Instead, the Court should preserve the constitutionality of purely adjudicatory bodies within the executive branch. These stand-alone tribunals rest on
unique constitutional footing and do not pose the conceptual challenges presented by the modern Federal
Trade Commission and similar policymaking agencies
that promulgate rules and launch investigations.
Meanwhile, drawing the constitutional line at “adjudicatory bod[ies],” Wiener, 357 U.S. at 356, would reflect the original logic of Humphrey’s Executor, and
would provide this Court a principled, bright-line rule
that distinguishes between constitutionally defective
agencies and the constitutionally permissible adjudicatory tribunals that Congress has chosen to house
within the executive branch.
II. The Merit Systems Protection Board is an example of a purely adjudicatory body that should remain constitutional—even if the Court holds that the
President must be able to remove Federal Trade Commissioners at will. The Board hears discrete appeals
brought by civil servants. It does not make policy, regulate parties, or launch investigations.
Indeed,
15
invalidating the Board would mean invalidating legislative courts—past, present, and future—within the
executive branch. This Court should not take that
drastic step in a case that does not at all present that
issue.
ARGUMENT
However the Court addresses the government’s
challenge to the current structure of the Federal
Trade Commission, the Court should uphold the constitutionality of purely adjudicatory bodies within the
executive branch, such as the Merit Systems Protection Board. There is a “historical precedent” dating to
the Founding, Free Enter. Fund v. PCAOB, 561 U.S.
477, 505 (2010) (citation omitted), of Congress establishing non-Article III “legislative Courts,” Am. Ins.
Co. v. 356 Bales of Cotton, 26 U.S. 511, 546 (1828)
(Canter). Under a “time-honored reading of the Constitution,” these “legislative tribunals,” Freytag v.
Comm’r, 501 U.S. 868, 889 (1991), may hear matters
arising in the territories, id., offenses committed by
servicemembers, Ortiz v. United States, 585 U.S. 427,
437 (2018), and disputes regarding “public rights,”
SEC v. Jarkesy, 603 U.S. 109, 130 (2024); see N. Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50,
64-70 (1982). And as this Court has explained, members of these “legislative courts” may be protected
from removal at will, and may “hold [office] for such
term as Congress prescribes.” Ex parte Bakelite, 279
U.S. at 449.
I. THE COURT SHOULD NOT INVALIDATE REMOVAL
PROTECTIONS FOR MEMBERS OF ADJUDICATORY
BODIES.
A. There is “a serious and unbroken historical pedigree” of legislative courts whose members are not
16
removable at will by the President. Jarkesy, 603 U.S.
at 153 (Gorsuch, J., concurring).
In the first years of the new nation, Congress
passed laws under which non-Article III territorial
judges were removable by the President but also held
their commissions during good behavior. See An Act
to provide for the Government of the Territory NorthWest of the river Ohio, ch. 8, 1 Stat. 50, 51, 53 (1789);
Act of Apr. 7, 1798, ch. 28, § 3, 1 Stat. 549, 550. In a
landmark decision, Chief Justice Marshall explained
that these tribunals were “legislative Courts,” “not
constitutional Courts” established under Article III.
Canter, 26 U.S. at 546.
Prior to the Civil War, Congress created the Court
of Claims, a “legislative [c]ourt” whose judges were
likewise protected from arbitrary removal. Humphrey’s Executor, 295 U.S. at 629; see Act of Feb. 24,
1855, ch. 122, § 1, 10 Stat. 612, 612. In 1890, Congress
afforded removal protection to the Board of General
Appraisers, a multimember body balanced along partisan lines that heard cases regarding imported goods
and tariffs. See Act of June 10, 1890, ch. 407, § 12, 26
Stat. 131, 136. In 1906, Congress created a United
States Court for China, transferring jurisdiction over
judicial proceedings previously conducted “by United
States consuls and ministers by law and by virtue of
treaties between the United States and China.” An
Act Creating a United States court for China and Prescribing the jurisdiction thereof, Pub. L. No. 59-403,
§ 1, 34 Stat. 814, 814 (1906). The members of this
non-Article III body served for “ten years, unless
sooner removed by the President for cause.” Id. § 7.
In 1924, Congress established the Board of Tax Appeals—a precursor to the modern Tax Court—the
members of which could “be removed by the President
17
for inefficiency, neglect of duty, or malfeasance in office, but for no other reason.” Revenue Act of 1924,
Pub. L. No. 86-176, § 900(b), 43 Stat. 253, 337. Two
years later, in 1926, Congress reconstituted the Board
of General Appraisers as the United States Customs
Court, providing the new court’s officers the same
“tenure of office” as the old Board. Act of May 28,
1926, Pub. L. No. 69-304, § 2, 44 Stat. 669, 669.
B. In the years leading up to Humphrey’s Executor, this Court recognized that the Constitution allows
Congress to protect the members of these adjudicatory
bodies from arbitrary removal.
In its 1891 decision in McAllister, for example, the
Court explained that Congress, “in the respective acts
providing for the organization of” legislative “courts,”
may provide that its members will “hold their offices
during good behavior” or for some other period. 141
U.S. at 186.
In Ex parte Bakelite, the Court, then led by Chief
Justice Taft, unanimously confirmed that “legislative
courts” “are prescribed by Congress independently of
section 2 of article 3; and their judges hold for such
term as Congress prescribes, whether it be a fixed period of years or during good behavior.” 279 U.S. at 449
(emphasis added).
In Myers—the historical highwater mark for the
President’s removal power—Chief Justice Taft’s opinion for the Court acknowledged its precedent regarding legislative courts, and noted that at minimum territorial courts are constitutionally distinct from other
executive branch officials whom the Constitution required to be removable at will. 272 U.S. at 156-158;
see id. 182 n.2 (McReynolds, J., dissenting) (noting
that the majority opinion’s holding that principal
18
officers must be removed at will carved out an exception for “nonconstitutional judicial officers”).
Finally, just two years before Humphrey’s Executor, this Court heard Williams v. United States, in
which a judge on the Court of Claims sued after his
salary had been reduced. 289 U.S. at 560. This Court
upheld the reduction in the judge’s salary because the
Court of Claims was a legislative court, not an Article
III court whose judges’ salaries cannot be constitutionally “diminished during their Continuance in Office.” U.S. Const. art. III, § 1. The Court explained
that Congress has broad discretion to “confer upon an
executive officer or administrative board, or an existing or specially constituted court, or retain for itself,
the power to hear and determine controversies respecting claims against the United States.” Williams,
289 U.S. at 580. When Congress chooses to establish
a legislative court to hear such claims, as Congress did
when it established the Court of Claims, Congress
may determine “the tenure of” “offices” for its members. Id. at 562.3
C. Rightly or wrongly, when the Court decided
Humphrey’s Executor two years later, the Court
viewed the Federal Trade Commission as an adjudicatory entity akin to the Court of Claims.
Amicus urges the Court not to revisit Humphrey’s
Executor. Amicus recognizes, however, that some
3 In 1953, Congress declared the Court of Claims an Article III
court. See An Act to Amend Title 28, United States Code, Pub.
L. No. 83-158, 67 Stat. 226, 226; Glidden Co. v. Zdanok, 370 U.S.
530, 531-532 (1962). In 1982, Congress reversed course and designated the newly constituted Claims Court an Article I court.
See Federal Courts Improvement Act of 1982, Pub. L. No. 97-164,
§ 105, 96 Stat. 25, 27.
19
members of the Court have suggested that the Court
in 1935 incorrectly classified the Commission as an
adjudicatory entity, underappreciated its executive
characteristics, and was motivated by its “bitter
standoff” with “President Roosevelt.” Seila Law, 591
U.S. at 246 (Thomas, J., concurring in part and dissenting in part).
But whatever the Court decides in this case with
respect to the modern Federal Trade Commission, the
first question presented does not require the Court to
reach the far larger question of purely adjudicatory
tribunals that do not make policy, are fairly characterized as performing “quasi judicial” functions, and
follow in the unique historical tradition of legislative
courts. Humphrey’s Executor, 295 U.S. at 629.
Indeed, it would be faithful to the core logic of
Humphrey’s Executor for the Court to reaffirm Congress’s historic ability to provide tenure protections
for true adjudicators. In Humphrey’s Executor, the
Solicitor General argued that “the removability of
members of the Federal Trade Commission necessitated” the same removability for the members of “the
Court of Claims.” Id. at 629. Citing its recent decision
in Williams, the Court rejected that argument—i.e.,
that members of a “legislative” court must “continue
in office only at the pleasure of the President”—and
then went on to uphold the structure of the Federal
Trade Commission. Id. The Court could overturn
Humphrey’s Executor’s classification of the Federal
Trade Commission as akin to the Court of Claims
while simultaneously remaining faithful to the history of removal protection for members of purely adjudicatory bodies.
D. The Court’s decision in Wiener two decades
later further reinforces the conclusion that this Court
20
could draw a principled line at preserving for-cause
removal provisions for legislative courts while holding
that members of policymaking agencies must be removable at will by the President.
Wiener involved an effort to remove a member of
the War Claims Commission, a purely “adjudicatory
body” that was a legislative court like the modern-day
Tax Court or the Merit Systems Protection Board. 357
U.S. at 356. The Commission decided “claims for compensating internees, prisoners of war, and religious
organizations” “who suffered personal injury or property damage at the hands of the enemy in connection
with World War II.” Id. at 350.
In ruling for the removed official, the Court echoed
its decisions regarding legislative courts. The Court
explained that the Commission was “an adjudicating
body with all the paraphernalia by which legal claims
are put to the test of proof.” Id. at 354. “Congress
could” “have given jurisdiction over [the] claims to the
District Courts or to the Court of Claims.” Id. at 355.
But instead, Congress “chose to establish a Commission to ‘adjudicate according to law’ the classes of
claims defined in the statute.” Id. That fact “did not
alter the intrinsic judicial character of the task with
which the Commission was charged.” Id.
In this case, the Court could similarly hold that
legislative courts remain constitutional, and that Wiener was correctly decided. In other words, when it
comes to an adjudicatory body that does not make policy—such as the War Claims Commission or the Merit
Systems Protection Board—Congress may house the
tribunal within the executive branch and protect its
members from arbitrary removal. At the same time,
the Court would be free to conclude that the members
of independent agencies that do launch investigations,
21
regulate parties, and make policy must be removable
at will.
E. Drawing the constitutional line at adjudicatory
bodies would have five jurisprudential benefits.
First, that line would be consistent with history
and precedent—which even the government is forced
to acknowledge in part. See U.S. Br. 23 (recognizing
President cannot remove members of D.C. Court of
Appeals). Preserving for-cause removal protections
for purely adjudicatory bodies would harmonize
Humphrey’s Executor with that history and precedent,
and would be fully consistent with Wiener—which the
Court would not need to overturn. And it would spare
the Court from the unintended ramifications of remaking its caselaw on legislative courts without any
briefing.
It would also explain Humphrey’s Executor’s description of a legislative court as exercising “quasi judicial” power. 295 U.S. at 629. As the unanimous Taft
Court explained in Ex parte Bakelite, the power a legislative court exercises is “quasi judicial” in that it is
directed to matters that “do not require judicial determination and yet are susceptible of it.” 279 U.S. at
451, 458. This Court has at times even said that the
“power exercised by” some “non-Article III tribunals is
judicial power.” Freytag, 501 U.S. at 889 (citing Williams, 289 U.S. at 565-566); Ortiz, 585 U.S. at 457, 463
(Thomas, J., concurring) (concluding that military tribunals within the executive branch exercise “judicial
power”).
In other words, the “fact that” Congress chooses “to
establish a” legislative court “to ‘adjudicate according
to law’ ” certain “classes of claims” does “not alter the
intrinsic judicial character of the task”—a task that
22
involves applying law to facts in individual cases, just
as judges do. Wiener, 357 U.S. at 355. By contrast, an
independent agency that launches investigations or
sets policy by filling out vague statutes is simply not
performing tasks of an “intrinsic judicial character.”
Id.
Second, drawing the line at truly adjudicatory bodies would resolve the government’s stated concerns of
a “headless Fourth Branch.” U.S. Br. 4 (quoting FCC
v. Consumers’ Rsch., 145 S. Ct. 2482, 2517 (2025) (Kavanaugh, J., concurring)). The Court would subject to
direct presidential oversight policymaking agencies—
such as the Federal Trade Commission, the Consumer
Product Safety Commission, the Federal Communications Commission, and the Securities and Exchange
Commission—that regulate private conduct and
might be said to exercise “vast power” over people’s
lives. Id. at 20. At the same time, the Court would
preserve tribunals—like the Tax Court and the Merit
Systems Protection Board—that perform inherently
judicial tasks and do not raise similar constitutional
concerns.4
Third, a ruling that the heads of policymaking
agencies must be removable at will—but not adjudicatory bodies—would harmonize Humphrey’s Executor with the Court’s three most recent decisions regarding the removal power.
4 To be sure, policymaking agencies may at times engage in ad-
judications. But unlike the Merit Systems Protection Board,
these independent agencies are not purely or even predominantly adjudicatory. They instead perform a wide array of rulemaking and investigations, and even their adjudicatory functions in part make policy.
23
In Free Enterprise Fund, the Court exempted “administrative law judges” from its holding prohibiting
dual layers of removal protection, 561 U.S. at 507
n.10. As the Court explained, “administrative law
judges” “perform adjudicative rather than enforcement or policymaking functions.” Id. If the Court
adopted the approach outlined in this brief, the Court
would draw the same line here, permitting modest removal protections for adjudicators but prohibiting
them for policymakers.
Meanwhile, in Seila Law, the Court recently characterized the Humphrey’s Executor exception as applying to “multimember expert agencies that do not
wield substantial executive power.” Seila Law, 591
U.S. at 218 (emphasis added). But in Collins v. Yellen,
594 U.S. 220 (2021), the Court explained that “Courts
are not well-suited to weigh the relative importance of
the regulatory and enforcement authority of disparate
agencies,” id. at 253. Some have suggested that there
is a potential tension between Seila Law and Collins.
The former could be read to require courts to determine whether executive power is substantial, but the
latter could be read to forbid that inquiry. See U.S.
Br. 34.
The Court could reconcile any apparent tension by
holding that pure adjudication—i.e., truly applying
law to facts—is per se not the exercise of substantial
executive power. That is because the task is of an “intrinsic judicial character,” not an executive one. Wiener, 357 U.S. at 355; see Free Enter. Fund v. PCAOB,
537 F.3d 667, 699 n.8 (D.C. Cir. 2008) (Kavanaugh, J.,
dissenting) (explaining that “adjudicatory functions”
should “not be considered central to the functioning of
the Executive Branch for purposes of the Article II
24
removal precedents” (quotation marks and citation
omitted)).
Fourth, allowing Congress to provide modest removal protections for purely adjudicatory entities that
do not make policy would further critical due process
values. As this Court has explained, a “fair tribunal
is a basic requirement of due process,” and that rule
“applies to administrative agencies which adjudicate
as well as to courts.” Withrow v. Larkin, 421 U.S. 35,
46 (1975) (quotation marks and citation omitted). In
certain circumstances, Congress may reasonably determine that an adjudicator “who holds his office only
during the pleasure of another, cannot be depended
upon to maintain an attitude of independence against
the latter’s will.” Wiener, 357 U.S. at 353 (quoting
Humphrey’s Executor, 295 U.S. at 629).
This does not mean that the Constitution’s guarantee of due process requires that all agency adjudicators be independent from at-will removal. Our argument is narrower: Congress may determine that in
certain circumstances—for example, in disputes regarding partisan retaliation within the civil service—
a measure of independence is necessary to ensure the
appearance or reality of impartiality.
Fifth, preserving legislative courts would help protect interbranch comity.
Declaring “an Act of Congress unconstitutional” “is
the gravest and most delicate duty that this Court is
called on to perform.” Blodgett v. Holden, 275 U.S.
142, 147-148 (1927) (Holmes, J., concurring). It involves the direct clash of one branch (the Judiciary)
against another (Congress), here at the request of the
third (the Executive). Should this Court invalidate
the removal protections for independent agencies that
25
make policy, it would disrupt Congress’s reasonable
reliance on the Court’s precedent. But at least for
those policymaking agencies, Congress would have
had little other choice but to house the agencies within
the executive branch.
By contrast, for legislative courts, Congress had a
choice: It could have assigned the same judicial functions to an Article III court. Invalidating the removal
protections for legislative courts thus raises difficult
severability questions about what Congress would
have intended in the absence of Humphrey’s Executor,
cf. Seila Law, 591 U.S. at 234, and risks aggrandizing
the executive branch’s power in ways that Congress
would never have wanted. And to do so in a case that
does not present the question would be particularly
imprudent.
The Merit Systems Protection Board demonstrates
the problem. In the 1970s, the architects of civil service reform considered but declined to assign civil service claims to Article III courts in the first instance.
They feared that Article III judges would “delay” resolving cases, would unduly trench on the executive
branch, and would lack necessary “technical expertise.” Pers. Mgmt. Project, 1 Final Staff Report 57
(1977). But reformers deemed it critical that the
Board’s members be removable “only for a cause, not
for partisan political reasons.” Id. at 54. Had Congress known the Board’s members would be removable at will, there is every reason to think Congress
may have chosen instead to assign the Board’s judicial
26
functions to an Article III court rather than hand the
President tools to remake a patronage system.5
F. The government implicitly recognizes the long
tradition of legislative courts when it acknowledges
that “the President’s illimitable power of removal”
does not extend “D.C. Court of Appeals judges.” U.S.
Br. 23 (quotation marks and citation omitted). But in
a footnote, the government asks the Court to overturn
Wiener, id at 30 n.1, and—without any analysis or
briefing—invites the Court to invalidate the Merit
Systems Protection Board too, id. at 3, 19. Meanwhile, the government conspicuously fails to offer any
view on whether the President can fire members of
other purely adjudicatory bodies, such as the Tax
Court. And the government neither engages with the
history undergirding legislative courts nor grapples
with the fact that legislative courts do not engage in
policymaking.
Instead, the government trains its fire on the Federal Trade Commission—and hopes the Court will
gloss over the complexities posed by legislative courts.
That obfuscation confirms that, whatever the Court
decides about the Federal Trade Commission, the
Court should at least reserve judgment for these adjudicatory bodies that do not make policy.
5 Indeed, if the President fires the Board’s members and robs it
of a quorum, he can disable the Board from hearing appeals altogether, leading cases to stall permanently in the administrative process. This can prevent important civil service disputes—
such as the unlawful firing of federal workers—from ever proceeding to judicial review. There is no reason to think Congress
would have given the President the power to eviscerate civil service protections in this manner.
27
To the extent the government gestures at a justification for invalidating purely adjudicatory bodies, it
is skin-deep. The government suggests (at 24) that
whenever adjudication occurs within the executive
branch, the act is an exercise of executive power, and
the adjudicator must be removable at will. But “questions implicating the separation of powers cannot be
answered by arguing, in circular fashion, that whatever the Executive Branch does is necessarily an exercise of executive power,” and the individual wielding
that power must be removable at will. Ortiz, 585 U.S.
at 457, 463 (Thomas, J., concurring). Instead, the history of Congress regulating adjudicators’ removal
demonstrates that these adjudicators perform a “task”
of “intrinsic judicial character” and may be protected
from arbitrary removal. Wiener, 357 U.S. at 355.
II. THE MERIT SYSTEMS PROTECTION BOARD IS A
PURELY ADJUDICATORY BODY.
A. Despite inviting the Court to invalidate the
Merit Systems Protection Board in a drive-by holding,
the government never analyzes the Board’s unique
functions. Any fair analysis shows that the Board is
a purely adjudicatory body whose members may permissibly receive a modest degree of removal protection under the Constitution.
The Board hears discrete employment appeals
brought by civil servants. To evaluate those claims,
the Board applies the laws that Congress passed regulating matters such as partisan discrimination and
whistleblower retaliation. Just as with the War
Claims Commission, “Congress could, of course, have
given jurisdiction over these claims to the District
Courts.” Wiener, 357 U.S. at 355. That fact does not
change “the intrinsic judicial character of the task
28
with which” the Board is “charged.” Id. Indeed, the
Board could just as easily have been named the Merit
Systems Protection Court.
The purely adjudicatory Merit Systems Protection
Board bears no relationship to the policymaking entities that motivate critics of Humphrey’s Executor. As
Judge Millett has explained, the Board “has no investigatory or prosecutorial role,” but instead, like other
courts, is “passive and must wait for appeals to be initiated.” Harris, 2025 WL 980278 at *30 (Millett, J.,
dissenting). The Board does not make rules, except
those “akin to the federal rules of procedure and local
rules that courts adopt.” Id. at *31. The Board lacks
any “independent means of enforcing its orders.” Id.
at *30. Meanwhile, the vast majority of the Board’s
decisions—more than 95%—are unanimous.6
Indeed, the Board performs none of the non-adjudicatory functions that the government alleges render
the Federal Trade Commission constitutionally suspect. Thus, for example, the Merit Systems Protection
Board does not (i) “bring civil enforcement suits
against private parties”; (ii) “promulgate binding
rules”; (iii) “investigate potential violations”; or (iv)
conduct “foreign relations.” U.S. Br. 10, 28.
All of this is why, in Harris v. Bessent, the government agreed that the Merit Systems Protection Board
was “predominantly an adjudicatory body.” See Oral
Arg. Tr. 12, Harris v. Bessent, No. 25-5037 (D.C. Cir.,
Mar. 18, 2025). And that is why the Board is a
6 The Board falls squarely within the public rights exception.
It
hears “claims against the United States,” Ex parte Bakelite, 279
U.S. at 452, involving “the granting of” quintessential “public
benefits,” i.e., public employment, Jarkesy, 603 U.S. at 130.
29
permissible legislative court whose members’ tenure
Congress may regulate.7
B. As the district court explained in Harris v. Bessent, the Merit Systems Protection Board also stands
on unique constitutional footing for a second reason:
Congress also has unique authority to establish the
Board incident to its constitutional power to “ ‘limit,
restrict, and regulate the removal’ ” of inferior officers
and employees. 775 F. Supp. 3d at 177 (quoting Perkins, 116 U.S. at 485).
As Chief Justice Taft explained in Myers, “in committing the appointment of” “inferior officers to the
heads of departments,” Congress “may prescribe incidental regulations controlling and restricting the latter in the exercise of the power of removal.” 272 U.S.
at 161. Congress exercised that power when it enacted the Civil Service Reform Act—and the Board’s
“independence” is “structurally inseparable from the”
Act itself. Harris, 775 F. Supp. 3d at 177. This provides yet another reason the Court should decline the
government’s invitation to invalidate the Merit Systems Protection Board in a drive-by holding.
C. In addition to the Board, amicus has identified
a handful of other tribunals whose members receive a
modest degree of for removal protection, and who
7 To the extent the government may argue that the Board pos-
sesses a vestigial function incompatible with an adjudicatory
body, the solution (consistent with principles of constitutional
avoidance and judicial modesty) would be to invalidate a particular exercise of that function should it ever be used. See United
States v. Arthrex, Inc., 594 U.S. 1, 24-26 (2021). That narrow
remedy may be less feasible for policymaking entities, for whom
rulemaking or investigations are central to the agency’s structure.
30
would be at risk if the Court accepts the government’s
sweeping and unnecessary conception of Article II removal.
Congress established the Tax Court “under article
I of the Constitution of the United States” to hear disputes involving revenue collection. 26 U.S.C. § 7441;
see Freytag, 501 U.S. at 888 (Tax Court is a “legislative court”). Its members serve 15-year terms and
“may be removed by the President, after notice and
opportunity for public hearing, for inefficiency, neglect of duty, or malfeasance in office, but for no other
cause.” 26 U.S.C. §§ 7443(e), 7443(f).
The Court of Appeals for Veteran Claims is comprised of up to seven members balanced along partisan lines. See 38 U.S.C. §§ 7253(a), 7253(b). Its
judges may be removed by the President only “on
grounds of misconduct, neglect of duty, engaging in
the practice of law,” or failing to abide by statutory
residency requirements. Id. § 7253(f)(1).
The Court of Appeals for the Armed Forces is the
top appellate body for the military. See Ortiz, 585 U.S.
at 432. Its judges—all of whom must be civilians—
may be removed only for “neglect of duty,” “misconduct,” or “mental or physical disability.” 10 U.S.C.
§ 942(c).
Judges on the District Courts for the Virgin Islands, the Northern Mariana Islands, and Guam
serve for 10-year terms, “unless sooner removed by
the President for cause.” 48 U.S.C §§ 1821(b)(1),
1614(a), 1424b(a). Finally, a decision ruling for the
government could invalidate the structure of the
Court of Federal Claims. That court is “established
under article I of the Constitution.” 28 U.S.C.
§ 171(a). Its judges serve 15-year terms and are
31
removable by a majority vote of the Federal Circuit
only “for incompetency, misconduct, neglect of duty,
engaging in the practice of law, or physical or mental
disability.” Id. §§ 172(a), 176(a).
***
However this Court decides the first question presented with respect to the Federal Trade Commission
and other policymaking agencies, the Court should
not invalidate modest removal protections for the
members of legislative courts, at least not without full
merits briefing and argument. These adjudicatory
bodies perform a genuine judicial function, have a
longstanding pedigree, and pose none of the constitutional problems presented by policymaking independent agencies.
32
CONCLUSION
Whatever it rules with respect to the Federal
Trade Commission and policymaking agencies, the
Court should not invalidate the structure of the Merit
Systems Protection Board and other legislative
courts.
Respectfully submitted,
NATHANIEL A.G. ZELINSKY
SAMANTHA BATEMAN
MARY L. DOHRMANN†
JAMES I. PEARCE††
WASHINGTON LITIGATION
GROUP
1717 K St. NW
Suite 1120
Washington, DC 20006
LINDA MARIE CORREIA
CORREIA & PUTH, PLLC
1400 16th Street, NW
Suite 450
Washington, DC 20036
† Admitted only in New
York; practicing under the
supervision of D.C. Bar
Members.
NEAL KUMAR KATYAL
Counsel of Record
JESSICA C. HUANG
MILBANK LLP
1101 New York Ave., NW
Washington, D.C. 20005
(202) 835-7500
nkatyal@milbank.com
MICHAEL KATOR
KERRIE DIANE RIGGS
JEREMY D. WRIGHT
KATOR, PARKS, WEISER &
WRIGHT, PLLC
1150 Connecticut Ave., NW
Suite 705
Washington, DC 20036
†† Admitted only in New
York and North Carolina;
practicing under the
supervision of D.C. Bar
Members.
Counsel for Amicus Curiae Cathy Harris
October 2025
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