Amicus Curiae Brief — Donald J. Trump, President of the United States, et al., Petitioners v. Rebecca Kelly Slaughter

Supreme Court briefNov 14, 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,

REBECCA KELLY SLAUGHTER, ET AL.,

Respondents.

_________

On Writ of Certiorari Before Judgment to the

United States Court of Appeals for the

District of Columbia Circuit

_________

BRIEF OF FORMER SENIOR WHITE HOUSE

LAWYERS, GOVERNMENT OFFICIALS,

FEDERAL JUDGES, GOVERNORS, AND

MEMBERS OF CONGRESS WHO WERE

APPOINTED OR NOMINATED BY

REPUBLICAN PRESIDENTS, OR WHO WERE

ELECTED AS REPUBLICANS, AS AMICI

CURIAE IN SUPPORT OF RESPONDENTS

HAROLD HONGJU KOH

HAMPTON Y. DELLINGER

SONIA MITTAL

Counsel of Record

Peter Gruber Rule

M. ARSALAN SULEMAN

of Law Clinic

FOLEY HOAG LLP

Yale Law School

1717 K Street N.W.

127 Wall Street

Washington, D.C. 20006

P.O. Box 208215

(202) 223-1200

New Haven, CT 06520

hdellinger@foleyhoag.com

(203) 432-4932

harold.koh@ylsclinics.org

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE ................................ 1

SUMMARY OF ARGUMENT ..................................... 1

ARGUMENT ............................................................... 5

Humphrey’s Is an Originalist

Decision, Rooted in the Separation

of Powers..................................................... 5

II.

The Originalist Analysis of

Humphrey’s Is Supported by

Both the History of the Founding

Era and Subsequent Practice,

Including the Intertwined History

of the FTC and the Federal Reserve ......... 9

III.

Since Humphrey’s, Congress has

Given the President More, Not

Less, Control Over the FTC ..................... 15

From a Constitutional

Perspective, the Powers

Exercised by the FTC Today

Do Not Differ From the Powers

the FTC Exercised in 1935 ................ 15

The Executive Has More

Power over the FTC Today

Than It Did in 1935 ........................... 23

IV.

Respect for Practice, Precedent

and Stability Also Requires

Upholding Humphrey’s ............................ 25

CONCLUSION .......................................................... 31

APPENDIX-LIST OF AMICI CURIAE .................... 1a

TABLE OF AUTHORITIES

Cases

Page(s)

In re Aiken Cnty.,

645 F.3d 428 (D.C. Cir. 2011) .............................. 27

Collins v. Yellin,

594 U.S. 220 (2021) .............................................. 12

Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215 (2022) ............................................. 27

Erlinger v. United States,

602 U.S. 821 (2024). ............................................. 27

Home Building & Loan Ass’n v.

Blaisdell,

290 U.S. 398 (1934). ............................................... 6

Humphrey’s Executor v. United States,

295 U.S. 602 (1935) ). ..... 1, 2, 3, 4, 5, 6, 7, 8, 9, 12,

14, 15, 16, 17, 18, 19, 20, 21, 22, 23,

25, 26, 27, 28, 29,

Immigration and Naturalization Service

v. Chadha,

462 U.S. 919 (1983) ........................................ 18, 30

Janus v. Am. Fed’n of State, Cnty. &

Mun. Emps., Council 31,

585 U.S. 878 (2018) .............................................. 27

Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024) .............................................. 27

iii

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ................................. 7

Morrison v. Olson,

487 U.S. 654 (1988) .................................... 5, 26, 28

Myers v. United States,

272 U.S. 52 (1926) .................... 6, 12, 13, 16, 17, 30

Nat’l Petroleum Refiners Ass’n v. Fed.

Trade Comm’n,

482 F.2d 672 (D.C. Cir. 1973), cert.

denied, 415 U.S. 951 (1974) ................................. 18

NLRB v. Noel Canning,

573 U.S. 513 (2014) .......................................... 4, 26

Payne v. Tennessee,

501 U.S. 808 (1991) .............................................. 26

Powell v. McCormack,

395 U.S. 486 (1969) ................................................ 9

Ramos v. Louisiana,

590 U.S. 83 (2020) ................................................ 27

Sec. & Exchange Comm’n v. Chenery

Corp.,

332 U.S. 194 (1947) .............................................. 19

Seila Law LLC v. CFPB,

591 U.S. 197 (2020) .......................... 3, 5, 14, 26, 27

Trump v. United States,

603 U.S. 593 (2024) .......................................... 4, 16

Wayman v. Southard,

23 U.S. (10 Wheat.) 1 (1825)................................ 19

Wiener v. United States,

357 U.S. 349 (1958) .................................... 5, 26, 28

Youngstown Sheet & Tube Co. v.

Sawyer,

343 U.S. 579 (1952) ....................................... 16, 30

Zivotofsky v. Kerry,

576 U.S. 1 (2015) .................................................. 22

Statutes

12 U.S.C. § 242 .......................................................... 28

12 U.S.C. § 4512 ........................................................ 28

15 U.S.C. § 41 ............................................................ 23

15 U.S.C. § 45(b) ........................................................ 20

15 U.S.C. § 45(g) ........................................................ 20

15 U.S.C. § 45(l) ................................................... 20, 24

15 U.S.C. § 46(j) ......................................................... 22

15 U.S.C. § 46(j)(1) .................................................... 22

15 U.S.C. § 46(j)(4) .................................................... 22

15 U.S.C. § 57 ............................................................ 29

38 Stat. 717 (1914) ............................ 18, 19, 21, 23, 24

39 U.S.C. § 202 .......................................................... 28

45 U.S.C. § 7171(b)(1) ............................................... 28

49 U.S.C. § 1111(c) .................................................... 29

52 Stat. 111 (1938) .................................................... 20

An Act Establishing a Mint, and

Regulating the Coins of the United

States, 1 Stat. 246 (1792)..................................... 11

An Act to Incorporate the Subscribers to

the Bank of the United States, 1

Stat. 191 (1791) .................................................... 11

An Act to Incorporate the Subscribers to

the Bank of the United States, 14

Stat. 266 (1816) .................................................... 11

Banking Act of 1933, 48 Stat. 162 ............................ 25

Hart-Scott-Rodino Antitrust

Improvements Act of 1976, Pub. L.

94–435, 90 Stat. 1383 .......................................... 21

Medicare Prescription Drug,

Improvement and Modernization Act

of 2003, Pub. L. 108–173, 117 Stat.

2066 ...................................................................... 21

Pub. L. No. 108-173, § 1112, 117 Stat.

2461 ...................................................................... 21

Constitutional Authorities

U.S. Const. Art. II, § 3 ............................................... 17

Other Authorities

1 Annals of Cong. (1789) (Joseph Gales

ed., 1834) ...................................................... 2, 7, 16

2 The Writings of Albert Gallatin 431

(Henry Adams ed., 1879) ..................................... 12

83 Cong. Rec. 397 (1938) ........................................... 20

Andrew T. Hill, The First Bank of the

United States, Fed. Rsrv. Hist. (Dec.

4, 2015),

https://www.federalreservehistory.or

g/essays/first-bank-of-the-us................................ 11

Andrew T. Hill, The Second Bank of the

United States, Fed. Rsrv. Hist. (Dec.

5, 2015)

https://www.federalreservehistory.or

g/essays/second-bank-of-the-us ........................... 11

Caleb Nelson, Special Feature: Must

Administrative Officers Serve at the

President’s Pleasure?, N.Y.U. L.

Democracy Project (Sep. 29, 2025),

https://democracyproject.org/posts/m

ust-administrative-officers-serve-atthe-presidents-pleasure ................................... 9, 30

Christine Kexel Chabot, Interring the

Unitary Executive, 98 Notre Dame L.

Rev. 129 (2022) ............................................... 10, 11

vii

Constitutional Separation of Powers

Between the President and

Congress, 20 Op. O.L.C. 125 (May 7,

1996) ..................................................................... 17

David M. Driesen, The Specter of

Dictatorship: Judicial Enabling of

Presidential Power 5 (2021) ................................. 29

Edmund Burke, Reflections on the

Revolution in France 87 (L.G.

Mitchell ed. Oxford Univ. Press

2020) (1790) ......................................................... 25

The Federalist (Clinton Rossiter ed.,

1961) ........................................................... 3, 16, 25

Former Federal Reserve Governors’ Br.,

Trump v. Cook, No. 25A312 (U.S.

Oct. 29, 2025) ....................................................... 25

Frederic Bloom & Nelson Tebbe,

Countersupermajoritarianism, 113

Mich. L. Rev. 809 (2015) ........................................ 5

FTC Organization Chart, Bureaus &

Offices, https://www.ftc.gov/aboutftc/bureaus-offices ............................................... 23

Gvt’s Reply Brief, Trump v. Slaughter,

No.ௗ25-332 (U.S. Sept.ௗ16,ௗ2025) .......................... 15

James. C. Lang, The Legislative History

of the Federal Trade Commission

Act, 13 Washburn L.J. 6 (1974) ........................... 13

viii

Jane Manners & Lev Menand, The

Three Permissions: Presidential

Removal and the Statutory Limits of

Agency Independence, 121 Colum. L.

Rev. 1 (2021)......................................................... 28

Jed Shugerman, Movement on Removal:

An Emerging Consensus about the

First Congress and Presidential

Power, 63 Am. J. Legal Hist. 258

(2023) .................................................................... 10

Jerry Mashaw, Recovering American

Administrative Law: Federalist

Foundations, 1787-1801, 115 Yale

L.J. 1256 (2006).............................................. 10, 11

Joseph L. Story, Commentaries on the

Constitution of the United States §

517 ........................................................................ 29

Lawrence B. Solum, Originalism and

Constitutional Construction, 82

Fordham L. Rev. 453 (2013) .................................. 6

Lev Menand, The Supreme Court’s

Federal Carveout: An Initial

Assessment (May 27, 2025) (Colum.

Pub. L. Rsch. Working Paper) ............................. 13

Louis J. Virelli III, Constitutional

Traditionalism in the Roberts Court,

73 U. Pitt. L. Rev. 1 (2011) .................................. 25

Marc Winerman, The Origins of the

FTC: Concentration, Cooperation,

Control and Competition, 71

Antitrust L.J. 1 (2003) ......................................... 13

Press Release, Fed. Trade Comm’n,

Andrew N. Ferguson Takes Over as

FTC Chairman, (Jan. 22, 2025),

https://www.ftc.gov/newsevents/news/pressreleases/2025/01/andrew-n-fergusontakes-over-ftc-chairman ....................................... 24

Reorganization Plan No. 8 of 1950, 15

Fed. Reg. 3175, reprinted in 5 U.S.C.

app. and in 64 Stat. 1264 ................................... 23

Robert E. Cushman, The Independent

Regulatory Commissions 188 (1941) ................... 14

Ryan M. Scoville, Legislative

Diplomacy, 112 Mich. L. Rev. 331

(2013) .................................................................... 22

S. Rep. No. 109-219 (2006) ........................................ 22

Sidney M. Milkis, The President and the

Parties: The Transformation of the

American Party System Since the

New Deal 160 (1993) ............................................ 23

Stephen A. Siegel, The Constitution on

Trial: Article III’s Jury Trial

Provision, Originalism, and the

Problem of Motivated Reasoning, 52

Santa Clara L. Rev 373 (2012) .............................. 6

W. Elliot Brownlee, The Creation of the

U.S. Tariff Commission, in A

Centennial History of the U.S.

International Trade Commission 71

(U.S. Int’l Trade Comm’n 2016),

https://www.usitc.gov/publications/ot

her/centennial_book/chapter3.pdf ....................... 13

William Baude (@WilliamBaude), X,

Bombshell - Caleb Nelson, one of the

most respected originalist scholars in

the country, comes out against the

unitary executive interpretation of

Article II! (Sept. 29, 2025, 4:56 PM),

https://x.com/WilliamBaude/status/1

972767388887384268 ............................................ 9

INTEREST OF AMICI CURIAE1

Amici comprise former White House lawyers,

senior government officials, federal judges, governors,

and members of Congress who were appointed or

nominated by Republican Presidents, or who were

elected as Republicans. Amici include senior officials

who served in one or more of the Republican

Administrations of Presidents Nixon, Ford, Reagan,

George H.W. Bush, George W. Bush, and Trump,

including as White House Counsel to the President,

Department of Justice leaders, Executive Branch

agency heads and senior appointees, and independent

agency officials. Amici also include retired federal

judges appointed by Republican presidents, as well as

former governors and members of Congress elected as

Republicans.

Collectively, amici have decades of government

experience, spanning the last fifty years. Their

interest in this case lies in preserving the separation

of powers and checks and balances that are

fundamental to our Constitution and the rule of law

in our country.

SUMMARY OF ARGUMENT

1. Humphrey’s Executor v. United States, 295

U.S. 602 (1935), was an originalist decision, written

by the Justice who is considered the intellectual

1 The full list of amici is set forth in the Appendix to this brief.

No counsel for a party to this case authored this brief in whole or

in part, no party or counsel for a party contributed money that

was intended to fund preparing or submitting this brief, and no

person other than amici or their counsel contributed money that

was intended to fund the preparation or submission of this brief.

progenitor of originalism. In an opinion by Justice

Sutherland, the unanimous Court upheld the removal

protections in the Federal Trade Commission (FTC)

Act based on evidence regarding the Constitution’s

original meaning and intent, including statements by

James Madison and Chief Justice John Marshall. The

test adopted in Humphrey’s—examining the character

of the office at issue—directly tracks the framework

James Madison proposed in the First Congress.

Madison explained there that when an executive

officer “partake[s]” of the responsibilities of the other

branches, “strong reasons” exist “why an officer of this

kind should not hold his office at the pleasure of the

Executive branch of the Government.” 1 Annals of

Cong. 611-12 (1789) (Joseph Gales ed., 1834) (James

Madison).

2. Historical scholarship since Humphrey’s has

strongly reinforced the Court’s originalist analysis.

From the Founding, Congress has repeatedly passed,

and Presidents have repeatedly signed, legislation

limiting the removal of members of multimember

commissions, particularly those administering

economic matters. Early examples include the

creation of the Sinking Fund Commission, the Mint,

and the First and Second Banks of the United

States—all entities that regulated aspects of the

economy, with governance structures limiting

presidential removal.

The FTC fits squarely within this historical

tradition. President Wilson championed both its

creation and its removal protections as part of his

“New Freedom” economic agenda, alongside the

Federal Reserve. As the first Trump Administration’s

Solicitor General conceded in Seila Law, the FTC and

other regulatory agencies share the same “basic

structural features,” and “‘[i]t has been generally

recognized that a removal restriction is concomitant

of such a body.’” Gov’t Br. Supporting Vacatur at 11,

Seila Law LLC v. CFPB, 591 U.S. 197 (2020) (No. 197) (citation omitted). In contrast, the current

Administration’s ahistorical and anti-originalist logic

would lead to holding unconstitutional not only the

FTC’s removal protections, but also identical

protections for the Federal Reserve and all other

multimember agencies. This would be a profoundly

radical outcome.

3. The Court’s reasoning in Humphrey’s is

further supported by the FTC’s history since 1935.

The Solicitor General argues that, regardless of its

character in 1935, the FTC now exercises “executive”

authority. This is both a conceptual and a factual

error.

As an initial matter, as Humphrey’s held, when

agencies operate in accordance with the congressional

design for the Executive Branch, they are respecting

Congress’s Article I authority, not diminishing that of

the President under Article II. 295 U.S. at 628.

Congress’s power to create agencies with cross-branch

powers is not a novel concept—indeed, it reflects core

originalist principles. Madison repeatedly articulated

this point in defending the Constitution. The

Federalist No. 48, at 309 (Clinton Rossiter ed., 1961);

No. 47, at 304. This Court has likewise recognized the

originalist principle that executive offices may

perform “mixed” roles. As Justice Barrett has pointed

out, the Constitution “does not vest every exercise of

executive power in the President’s sole discretion”;

rather, “Congress has concurrent authority over many

Government functions, and it may sometimes use that

authority to regulate the President’s official conduct.”

Trump v United States, 603 U.S. 593, 651-52 (2024)

(Barrett, J., concurring).

Nor, from a constitutional perspective, are

there any differences between the powers the FTC

exercises today and the powers it exercised in 1935.

To the contrary, what has changed is the President’s

power: the FTC today is more under the control of the

President than it was in 1935. Following a

congressional amendment to the FTC Act, the

President now designates the FTC’s Chairman, and

the Chairman in turn sets the agency’s agenda by

appointing the heads of the FTC’s bureaus.

Additionally, the FTC can no longer bring an action

for penalties against a regulated party that violates a

cease-and-desist order, but rather, must ask the

Attorney General to do so. These congressional

amendments have shifted the balance of power since

1935 toward greater, not lesser executive control over

the FTC. If the Administration seeks still more power

over the FTC, it must pursue that goal through

legislation, not by seizing control unilaterally in

violation of the separation of powers.

4. This Court has recognized that “long settled

and established practice is a consideration of great

weight in a proper interpretation of constitutional

provisions regulating the relationship between

Congress and the President.” NLRB v. Noel Canning,

573 U.S. 513, 524 (2014) (cleaned up). Overruling

Humphrey’s would require rejecting not only the

principles of originalism, but also the value of stare

decisis, since Humphrey’s is part of a long chain of

opinions over the past 90 years. The Court

unanimously

endorsed

the

“philosophy”

Humphrey’s in Wiener v. United States, 357 U.S. 349,

356 (1958), extended it in Morrison v. Olson, 487 U.S.

654, 690-91 (1988), and preserved it in Seila Law LLC

v. CFPB, 591 U.S. 197, 220 (2020).

Judicial modesty and respect for historical

practice and judicial precedent demand that only the

strongest considerations can justify concluding that

all previous generations—including this Court’s own

predecessors in unanimous and near-unanimous

decisions—misinterpreted the Constitution. No such

considerations exist here. Overruling Humphrey’s

would constitute a radical departure from both

historical and judicial precedents, ushering in, for the

first time in our Nation’s history, unchecked

presidential control over multimember agencies to

which Congress granted a modest degree of

administrative protection in order to advance

constitutional checks and balances.

ARGUMENT

Humphrey’s Is an Originalist Decision,

Rooted in the Separation of Powers.

Humphrey’s was decided on originalist grounds.

This is not surprising, since it was written by Justice

Sutherland, who is considered the intellectual

progenitor of originalism. 2 In upholding the FTC’s

2 Justice Sutherland “argued for something like originalism

without using the term.” Frederic Bloom & Nelson Tebbe,

Countersupermajoritarianism, 113 Mich. L. Rev. 809, 811 n.9

(2015). He “was second to none in his commitment to the view

removal protections, Justice Sutherland’s opinion for

the Court examined the Constitution’s language and

structure, as well as the Framers’ original intent

regarding removal and the separation of powers.

Humphrey’s built on the historical analysis in

Myers v. United States, 272 U.S. 52, 176 (1926), which

held that Congress could not constitutionally require

that the President obtain Senate advice and consent

before removing a postmaster. All four surviving

Justices from the Myers majority joined the

unanimous decision in Humphrey’s, as did the two

surviving dissenters in that case. Because Myers

“ha[d] been so recently decided,” the Court in

Humphrey’s found it unnecessary to repeat the

“wealth of material” set forth therein regarding the

“historical, legislative and judicial data bearing upon

the question [of executive removal], beginning with

what is called ‘the decision of 1789’ in the first

Congress and coming down almost to the day when

the opinions were delivered.” 295 U.S. at 626.

Humphrey’s did nonetheless highlight three

aspects of the evidence presented in Myers. First, the

Court noted that “[a] reading of the debates”

regarding the Decision of 1789 “shows that the

President’s illimitable power of removal was not

that the sole goal of constitutional interpretation is to maintain

and effectuate the Constitution’s original meaning.” Stephen A.

Siegel, The Constitution on Trial: Article III’s Jury Trial

Provision, Originalism, and the Problem of Motivated Reasoning,

52 Santa Clara L. Rev 373, 377 (2012); see also Lawrence B.

Solum, Originalism and Constitutional Construction, 82

Fordham L. Rev. 453, 462 (2013) (describing Sutherland’s

dissent in Home Building & Loan Ass’n v. Blaisdell, 290 U.S. 398

(1934), as a “famous example” of “[o]riginalist ideas . . . that

predate contemporary debates and the word ‘originalism.’”).

considered in respect of other than executive officers.”

Id. at 631. Second, the Court observed that “when, at

a later time, the tenure of office for the Comptroller of

the Treasury was under consideration, Mr. Madison

quite evidently thought that, since the duties of that

office were not purely of an executive nature but

partook of the judiciary quality as well, a different

rule in respect of executive removal might well apply.”

Id. (citing 1 Annals of Cong. 611-12 (1789) (Joseph

Gales ed., 1834)). Third, the Court examined Chief

Justice Marshall’s analysis in Marbury v. Madison, 5

U.S. (1 Cranch) 137, 162, 165-66 (1803), which

distinguished between officers such as justices of the

peace for the District of Columbia and “officers

appointed to aid the President in the performance of

his constitutional duties,” concluding that only the

latter were removable at the President’s will. 295 U.S.

at 631.

The Court concluded that Congress’s ability to

“condition the power” of the President to remove an

officer “depend[s] upon the character of the office . . . .”

Id. (emphasis added). This test directly tracks the

framework James Madison proposed in the First

Congress’s debate over the Comptroller of the

Treasury. See 1 Annals of Cong. 611-12 (James

Madison); see also Humphrey’s, 295 U.S. at 631.

Madison explained that Congress’s power to protect

officers from removal depends upon the “nature of

th[e] office.” 1 Annals of Cong. 611. Madison further

stated that when an executive office “partake[s]” in

the qualities of the other branches, “there may be

strong reasons why an officer of this kind should not

hold his office at the pleasure of the Executive branch

of the Government.” Id. at 611-12.

Humphrey’s thus adopted the precise

constitutional framework articulated by one of the

Constitution’s principal architects. Applying that test,

the Court found that the FTC was “created by

Congress to carry into effect legislative policies

embodied in the statute . . . and to perform other

specified duties as a legislative or judicial aid.” 295

U.S. at 628. The legislation made clear that the FTC

“must be free from executive control” and its duties

“performed without executive leave.” Id. Accordingly,

the FTC could not “in any proper sense be

characterized as an arm or eye of the executive.” Id.

The FTC’s removal protections were not incidental—

they were essential to its statutory design.

Humphrey’s recognized that the separation of

powers lay at the heart of the dispute. But the Court

identified the main threat as usurpation by the

Executive, not by Congress. Citing both James Wilson

and Justice Story, the Court stressed the

“fundamental necessity” of preventing “control or

coercive influence” of one branch over the others. Id.

at 629. The Court concluded that “[t]he power of

removal here claimed for the President falls within

this principle, since its coercive influence threatens

the independence” of the Commission. Id.

Congressional choices to limit the removal

power deserve particular respect where—as

Humphrey’s recognized—they form part of the checks

and balances necessary to restrain presidential power.

As the Court there noted, “one 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.” Id. at 629.

II.

The Originalist Analysis of Humphrey’s

Is Supported by Both the History of the

Founding Era and Subsequent Practice,

Including the Intertwined History of the

FTC and the Federal Reserve.

Subsequent scholarship on the Founding era

has only strengthened the originalist conclusions of

Humphrey’s. As the Solicitor General notes,

“Founding-era practice trumps later practice.” U.S. Br.

29 (citing Powell v. McCormack, 395 U.S. 486, 541-47

(1969)). Recent scholarship demonstrates that such

Founding-era practice supports Humphrey’s, as does

the subsequent history of federal administrative

agencies, including the intertwined creation of the

FTC and the Federal Reserve.

As recognized in Humphrey’s, 295 U.S. at 631,

the Decision of 1789—the First Congress’s debate over

whether the President could unilaterally remove

executive officers—cannot alone resolve the removal

question. Modern scholarship has confirmed the

decision’s limited evidentiary value.3 Indeed, relying

exclusively on the Decision undermines the originalist

3 As Professor Nelson recently noted, “a litany of scholars” who

have looked at the debates and votes involved in the Decision of

1789 “have convincingly argued that they do not show a

consensus for any particular interpretation of the Constitution.”

Caleb Nelson, Special Feature: Must Administrative Officers

Serve at the President’s Pleasure?, N.Y.U. L. Democracy Project

(Sep. 29, 2025), https://democracyproject.org/posts/mustadministrative-officers-serve-at-the-presidentspleasure;William Baude (@WilliamBaude), X, Bombshell - Caleb

Nelson, one of the most respected originalist scholars in the

country, comes out against the unitary executive interpretation of

Article

II!

(Sept.

29,

2025,

4:56

PM),

https://x.com/WilliamBaude/status/1972767388887384268.

argument for a broad removal power, since such

arguments “pivot[] further away from original public

meaning circa Ratification 1787–88,” and depend

instead on mid-nineteenth-century practices and

beliefs. Jed Shugerman, Movement on Removal: An

Emerging Consensus about the First Congress and

Presidential Power, 63 Am. J. Legal Hist. 258, 279

(2023).

Looking beyond the Decision of 1789, it is clear

that the First Congress and its successors created

multimember agencies with removal protections,

particularly to ensure economic stability. See Jerry

Mashaw, Recovering American Administrative Law:

Federalist Foundations, 1787-1801, 115 Yale L.J.

1256, 1291, 1301-02 (2006). The Sinking Fund

Commission is a particularly striking example.

Established by the First Congress in 1790 to purchase

U.S. securities and repay the national debt, the

Commission was structured as an independent, fivemember board, on which the Chief Justice and the

Vice President served as ex officio members. See

Christine Kexel Chabot, Interring the Unitary

Executive, 98 Notre Dame L. Rev. 129, 172 (2022).

Because the President could not remove either the

Chief Justice or the Vice President from their

constitutional offices, he likewise could not remove

them from their positions on the Commission. This

structure limited presidential power, since the

President could not disburse monies from the Fund

without the Commission’s consent. Id.

In 1792, Congress adopted a similar structure

for the federal Mint, authorizing the Chief Justice,

Secretary of Treasury, Comptroller of the Treasury,

Secretary of State, and Attorney General to inspect

coinage. An Act Establishing a Mint, and Regulating

the Coins of the United States, ch. 16, § 18, 1 Stat. 246,

250 (1792); see Chabot, supra, at 200; Mashaw, supra,

at 1301. The Chief Justice’s ex officio role as an

assayer under the Mint Act again shielded this

commission from exclusive executive control in order

to help ensure public confidence in the economy by

“secur[ing] a due conformity of the said gold and silver

coins to their respective standards.” Id.

The First and Second Banks of the United

States, which likewise performed functions that

otherwise would have fallen to the Executive, had

multimember boards with members the President

could not remove. The First Bank was wholly

privately controlled, with all of its twenty-five

directors solely appointed and removable by its

shareholders. See An Act to Incorporate the

Subscribers to the Bank of the United States, ch. 10,

§ 4, 1 Stat. 191, 192-93 (1791). Nonetheless, the Bank

“acted as the federal government’s fiscal agent,”

including by “collecting tax revenues, securing the

government’s funds,” and managing “the U.S.

Treasury’s interest payments to European investors.”

Andrew T. Hill, The First Bank of the United States,

Fed.

Rsrv.

Hist.

(Dec.

2015),

https://www.federalreservehistory.org/essays/firstbank-of-the-us. The Second Bank likewise acted as

“fiscal agent for the federal government”; its board

consisted of twenty-five directors, only five of whom

were appointed by the President and confirmed by the

Senate. Andrew T. Hill, The Second Bank of the

United States, Fed. Rsrv. Hist. (Dec. 5, 2015)

https://www.federalreservehistory.org/essays/secondbank-of-the-us; see also An Act to Incorporate the

Subscribers to the Bank of the United States, ch. 44,

§ 8, 14 Stat. 266, 269-70 (1816). James Madison, as

President, supported the creation of a Second Bank,

believing that its propriety was “settled by precedent.”

See Letter from Albert Gallatin to Nicholas Middle

(Aug. 14, 1830), in 2 The Writings of Albert Gallatin

431, 435 (Henry Adams ed., 1879).

The Sinking Fund Commission, the Mint, and

the First and Second Banks—together with Madison’s

views regarding the Comptroller of the Treasury

discussed above—show that since the Founding era,

the Framers understood Congress to possess

constitutional authority to restrict the executive

removal power, particularly with respect to entities

whose responsibilites touched upon the economy. This

Court has recognized as much, describing the Sinking

Fund Commission as a “multi-member” body

“materially different” from agencies run by single

nonremovable officers. Collins v. Yellen, 594 U.S. 220,

253 n.19 (2021).4

This Founding-era tradition has continued

throughout our Nation’s history. Contrary to the

suggestion that Humphrey’s ushered in a new era, U.S.

Br. at 32-34, a multitude of regulatory agencies

already existed at the time Humphrey’s was decided.

As Justice McReynolds observed in his Myers dissent,

by 1926 Congress had created numerous agencies

with removal restrictions, including “the Interstate

Commerce Commission, Board of General Appraisers,

Federal Reserve Board, Federal Trade Commission,

4While Collins suggested that the Commission did not operate

“beyond the President’s control,” 594 U.S. at 253 n.19, its

structure ensured that the President could never take unilateral

control of the Commission through removals alone.

Tariff Commission, Shipping Board, Federal Farm

Loan Board, [and] Railroad Labor Board.” Myers, 272

U.S. at 181 (McReynolds, J., dissenting).

The FTC is thus part of a long historical

tradition. President Wilson championed—not merely

ratified—both its creation and its removal protections,

as one of three pillars of his “New Freedom” economic

agenda, alongside the Federal Reserve and the Tariff

Commission. W. Elliot Brownlee, The Creation of the

U.S. Tariff Commission, in A Centennial History of the

U.S. International Trade Commission 71, 72 (U.S.

Int’l

Trade

Comm’n

2016),

https://www.usitc.gov/publications/other/centennial_

book/chapter3.pdf. The Federal Reserve and FTC

were designed as complementary institutions: just as

the Federal Reserve would independently regulate the

Nation’s banks and financial system, the FTC would

play an analogous role in the corporate sphere.5 Like

the FTC, the Federal Reserve followed the model of

“expert, multimember commissioner regulation of

economic sectors” established by agencies such as the

Interstate Commerce Commission (ICC). Lev Menand,

The Supreme Court’s Federal Carveout: An Initial

Assessment 6-7 (Colum. Pub. L. Rsch. Working Paper,

May 27, 2025).

As the Solicitor General in the first Trump

Administration acknowledged in his brief in Seila

Law v. CFPB, 591 U.S. 197 (2020), every independent

regulatory agency from the ICC onward—including

the FTC and Federal Reserve—has shared the same

5 See

James. C. Lang, The Legislative History of the Federal

Trade Commission Act, 13 Washburn L.J. 6, 15 (1974); Marc

Winerman, The Origins of the FTC: Concentration, Cooperation,

Control and Competition, 71 Antitrust L.J. 1, 17 (2003).

“‘basic structural features.’” Gov’t Br. at 27, Seila

Law, No. 19-7 (U.S.) (citation omitted). The Solicitor

General further acknowledged, “[i]t has been

generally recognized that a removal restriction is

concomitant of such a body.” Id. at 27-28 (quoting

Robert E. Cushman, The Independent Regulatory

Commissions 188 (1941)). Such restrictions “reinforce

the long-term continuity and expertise that the

structure of multimember agencies with staggeredterm memberships was designed to promote” and

“promote the deliberative group decision making that

the structure of multimember agencies was already

designed to facilitate.” Id. at 28-29.6

In contrast to the first Trump Administration’s

approach in Seila Law, the current Administration

takes a radically ahistorical and anti-originalist

position, claiming sweeping presidential authority to

remove anyone at will: not only FTC Commissioners

but also Federal Reserve Governors and presumably

all other agency members, notwithstanding

congressionally enacted removal restrictions. This

radical position is precisely what the Solicitor General

advanced, and this Court rejected, in Humphrey’s,

stating that “[i]f Congress is without authority to

prescribe causes for removal of members of the

[federal] trade commission . . . that power at once

becomes practically all-inclusive in respect of civil

officers with the exception of the judiciary provided for

by the Constitution.” 295 U.S. at 629. As Humphrey’s

The Solicitor General further argued that “Humphrey’s

Executor’s

‘quasi-legislative’

and

‘quasi-judicial’

characterizations are best regarded as referring to the manner in

which a multimember body is intended to operate––through an

interactive deliberative process and voting in the nature of a true

‘legislative’ or ‘judicial’ body––not to its functions.” Id. at 32.

held, the Constitution does not vest such “all-inclusive”

power in any President.

III.

Since Humphrey’s, Congress has

Given the President More, Not Less,

Control Over the FTC.

The history of the FTC since 1935 further

supports this Court’s reasoning in Humphrey’s.

Contrary to the Solicitor General’s claim, no changes

to the FTC have made its powers more “executive” in

an Article II sense than they were in 1935. In contrast,

post-1935 amendments to the FTC Act have given the

President more control over the FTC, not less.

A. From a Constitutional Perspective,

the Powers Exercised by the FTC

Today Do Not Differ From the

Powers the FTC Exercised in 1935.

The FTC’s current powers—civil enforcement,

rulemaking, adjudication, investigation, and limited

foreign coordination—are not “new.” Cf. Gvt’s Reply

Brief at 3–5, Trump v. Slaughter, No.ௗ25Ǧ332 (U.S.

Sept.ௗ16,ௗ2025). All are encompassed within the

categories of powers that the Court considered in

Humphrey’s.

As an initial matter, the Administration

confuses “executive authority” in the Article II sense,

with the “execution” of congressional design in

accordance with Congress’s Article I authority. As the

Court held in Humphrey’s, “[t]o the extent that [the

FTC]

exercises

any

executive

function—as

distinguished from executive power in the

constitutional sense—it does so in the discharge and

effectuation of its quasi-legislative or quasi-judicial

powers, or as an agency of the legislative or judicial

departments of the government.” 295 U.S. at 628.

This concept was not novel—it was

quintessentially originalist. Humphrey’s rooted this

insight in Madison’s statement that an executive

office might partake of the responsibilities of another

branch. 295 U.S. at 631; 1 Annals of Cong. 611-12.

Madison also repeatedly articulated this position in

the debate over the Constitution, stating that the

branches “should not be so far separated as to have no

constitutional control over each other,” and that a

“partial mixture” of governmental powers is necessary

for the preservation of liberty. The Federalist No. 48,

at 309, No. 47, at 307 (C. Rossiter ed., 1961). As

Justice Brandeis—who joined the unanimous opinion

in Humphrey’s—noted in his Myers dissent, the

purpose of separation of powers is “to save the people

from autocracy” through “the inevitable friction

incident to the distribution of the government powers

among the three departments.” 272 U.S. at 293.

This Court has likewise recognized that

executive offices may perform “mixed” roles. As

Justice Barrett explained in her concurring opinion in

Trump v United States, 603 U.S. 593, 651-52 (2024)

(citing Youngstown Sheet & Tube Co. v. Sawyer, 343

U.S. 579, 637 (1952)), the Constitution “does not vest

every exercise of executive power in the President’s

sole discretion”; rather, “Congress has concurrent

authority over many Government functions, and it

may sometimes use that authority to regulate the

President’s official conduct.”7

The Department of Justice has also previously

recognized this principle. As the Department’s Office

of Legal Counsel acknowledged, “for-cause and fixedterm limitations on the power to remove officers with

adjudicatory duties affecting the rights of private

individuals will continue to meet with consistent

judicial approval: the contention that the essential

role of the Executive Branch would be imperiled by

giving a measure of independence to such officials is

untenable under both precedent and principle.”8

Nor has there been a change in the powers of

the FTC that alters the conclusion reached in

Humphrey’s. First, the FTC’s authority to file suits

against private parties has not changed in

constitutional character since 1935. At that time, the

7 The President’s constitutional duty to ensure that the laws “be

faithfully executed,” U.S. Const. Art. II, § 3, does not lead to a

different conclusion. As Justice Holmes noted in his dissent in

Myers, 272 U.S. at 177, “[t]he arguments drawn from the

executive power of the President, and from his duty . . . to take

care that the laws be faithfully executed . . . seem to me spider’s

webs inadequate to control the dominant facts[,]” since “[t]he

duty of the President to see that the laws be executed is a duty

that does not go beyond the laws or require him to achieve more

than Congress sees fit to leave within his power.”

The Constitutional Separation of Powers Between the

President and Congress, 20 Op. O.L.C. 125, 169 (May 7, 1996).

Significantly, although these officers are sometimes called

“independent,”they possess only “a measure of independence.” Id.

They remain politically accountable in two ways: first, they may

be removed by the Executive “for cause”; and second, they are

answerable to Congress, in particular to congressional oversight

and appropriations committees.

FTC could bring enforcement suits for violations of its

cease-and-desist orders, authority which the Court

expressly considered before concluding that this fact

did not substantively transform the character of the

Commission. 295 U.S. at 620-21. The power to enforce

federal law through litigation has never been

exclusively executive. 9 That the FTC now seeks

injunctions, civil penalties, and restitution rather

than only cease-and-desist enforcement does not

transform the power’s constitutional status.

Second, the FTC’s authority to promulgate

substantive rules also is not “new.” From the start, the

FTC Act authorized the Commission to “make rules

and regulations for the purpose of carrying out the

provisions of this Act.” Pub. L. No. 203, § 6(g), 38 Stat.

717, 722 (1914). This plain-text grant means what it

says: the FTC was granted substantive rulemaking

authority from 1914 forward. Nat’l Petroleum Refiners

Ass’n v. Fed. Trade Comm’n, 482 F.2d 672, 698 (D.C.

Cir. 1973), cert. denied, 415 U.S. 951 (1974).

Humphrey’s recognized the FTC’s quasi-legislative

authority to make policy, which the Commission then

exercised through case-by-case adjudication rather

than formal rulemaking. Indeed, the Court explicitly

noted this quasi-legislative authority to “carry into

effect legislative policies embodied in the statute in

accordance with the legislative standard” by “filling in

and administering the details” of statutory standards.

9 Congress itself has the power to intervene to defend statutes

when the Executive refuses to do so. See Immigration and

Naturalization Service v. Chadha, 462 U.S. 919, 940 (1983) (“We

have long held that Congress is the proper party to defend the

validity of a statute when an agency of government, as a

defendant charged with enforcing the statute, agrees with

plaintiffs that the statute is inapplicable or unconstitutional.”).

295 U.S. at 628. 10 Congress intended to create an

independent body of experts “who shall gain

experience by length of service” and determine the

meaning of the FTCA’s prohibition of “unfair methods

of competition” through this process. Id. at 625.

Nor is it relevant, from a constitutional

perspective, that the FTC originally exercised this

authority through case-by-case adjudication, rather

than generalized rulemaking. The choice between

these procedures makes no constitutional difference

because agencies may choose to “formulate new

standards of conduct”—that is, create substantive

policy—through either rulemaking or adjudication.

Sec. & Exchange Comm’n v. Chenery Corp., 332 U.S.

194, 201-03 (1947) (calling the rulemaking power

“quasi-legislative”). In other words, rulemaking and

adjudication are constitutionally equivalent methods

of exercising quasi-legislative power.

Third, just as in 1935, the FTC’s adjudicatory

authority has not substantially changed in character.

Under the original terms of the FTCA, the

Commission issued cease-and-desist orders after

adjudication, which became final upon service to the

regulated party. Pub. L. No. 203, § 5, 38 Stat. 717,

719-20 (1914). A regulated party, upon being served a

cease-and-desist order, could immediately petition a

court of appeals for relief, at which time the

10 The

Court in this regard invoked Chief Justice Marshall’s

statement in Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43

(1825), separating “those important subjects, which must be

entirely regulated by the legislature itself, from those of less

interest, in which a general provision may be made, and power

given to those who are to act under such general provisions to fill

up the details.”

Commission was required to file the record of its

hearing and could no longer modify its order. Id. at

720. The Commission could bring an action in a court

of appeals “for the enforcement of its order” if it felt

the regulated party had disobeyed it. 11 Id. The

Humphrey’s Court considered this scheme and found

it constituted the exercise of quasi-judicial authority.

295 U.S. at 620-21.

Today, under 15 U.S.C. § 45(b) and (g), an order

becomes final only after the expiration of a 60-day

appeal window. Regulated parties can petition for

judicial review of Commission cease-and-desist orders

before they become final. 15 U.S.C. § 45(g). But

finality matters only for enforcement: it does not

preclude judicial review but merely marks when

penalties accrue. 15 U.S.C. § 45(l). This minute

procedural change—from immediate effect upon

service to a sixty-day compliance window—hardly

qualifies as constitutionally significant. Thus,

contrary to the Administration’s suggestion, see U.S.

Br. at 27, FTC orders under 15 U.S.C. § 45(g) and (l)

cannot “become final and enforceable without judicial

intervention”—judicial review was available in 1935

and remains available today.

11 While the FTCA did not use the “final” or “finalize” language

currently present in 15 U.S.C. § 45(g), the addition of that

procedural language does not mark a substantive change that

rises to the level of a constitutional distinction. Congress enacted

§ 45(g), like § 45(l), in 1938, just three years after Humphrey’s.

Ch. 49, § 3, 52 Stat. 111, 113-14 (1938). Section 45(g) was added

merely “for the purpose of making definite the time when a

Commission order to cease and desist shall become final.” 83

Cong. Rec. 397 (1938). Congress added § 45(l) because it was

“believed to be necessary in order to enforce obedience to

Commission orders after they shall have become final.” Id.

Fourth, the FTC’s broad investigative powers

remain unchanged in constitutional character. Since

1914, the FTC has possessed authority “[t]o gather

and compile information concerning, and to

investigate . . . the organization, business, conduct,

practices, and management of any corporation

engaged in commerce, excepting banks and common

carriers,” including by “requir[ing] . . . corporations . . .

to file with the [C]ommission . . . annual or special, or

both annual and special, reports.” Ch. 311, § 6(a)-(b),

38 Stat. 717, 721 (emphasis added). The Commission

could subpoena witnesses and compel the production

of corporate documents, both with the backing of the

district courts. Ch. 311, § 9, 38 Stat. 717, 722-23.

No statute enacted since 1935 has

constitutionally expanded this investigative authority.

The Administration cites two legislative enactments:

the Hart-Scott-Rodino Antitrust Improvements Act of

1976, Pub. L. 94–435, 90 Stat. 1383, and the Medicare

Prescription Drug, Improvement and Modernization

Act of 2003, Pub. L. 108–173, 117 Stat. 2066. But

neither statute differs in kind or degree from the

powers the FTC possessed in 1935. Hart-Scott-Rodino

formalizes merger review, while the Medicare

Improvement Act merely directs drug manufacturers

to notify the FTC when they reach statutorily

mandated agreements. Pub. L. No. 108-173, § 1112,

117 Stat. 2461. Both statutes impose narrower

requirements than the broader investigative

authority in place at the time of Humphrey’s. 295 U.S.

at 621, 628.

Finally, the FTC’s narrow authority to

coordinate with foreign law enforcement is in

furtherance of its existing powers, not an affirmative

grant of executive foreign affairs power. Congress

enacted 15 U.S.C. § 46(j) in 2006 to further

information sharing to address transborder consumer

frauds enabled by the Internet. S. Rep. No. 109-219,

at 2 (2006). The statute authorizes the Commission to

share information with foreign law enforcement

agencies investigating fraudulent or deceptive

commercial practices. The authority is tightly

circumscribed. The FTC cannot initiate these

communications; instead, it must wait for a written

request from a foreign law enforcement agency. 15

U.S.C. § 46(j)(1). The FTC may negotiate

reciprocation agreements as required by the law

governing the foreign law enforcement agency, but

only with prior and final approval from the Secretary

of State, who maintains an ongoing oversight role. 15

U.S.C. § 46(j)(4). The Executive thus retains a robust

check on the Commission’s limited coordination

authority.

By authorizing this limited information

exchange, Congress did not infringe upon an

exclusively executive power. As the Court has

recognized, Congress also has a foreign affairs role.

Zivotofsky v. Kerry, 576 U.S. 1, 21 (2015); see also

Ryan M. Scoville, Legislative Diplomacy, 112 Mich. L.

Rev. 331, 333 (2013) (international activities of

Congress

include

“negotiating

agreements”).

Delegating to the FTC the authority to coordinate

with foreign authorities on consumer fraud

investigations—subject to State Department approval

and

oversight—does

not

transform

this

“predominantly quasi-judicial and quasi-legislative

agency” into a predominantly executive one, or

otherwise interfere with executive authority.

Humphrey’s, 295 U.S. at 624.

B. The Executive Has More Power over

the FTC Today Than It Did in 1935.

Today, the President has far greater control

over the FTC’s governance and enforcement than his

predecessor did in 1935. First, the President exercises

greater control over FTC governance. Since 1950, the

President has had the power to designate the FTC

Chairman—authority he did not have when

Humphrey’s was decided. Reorganization Plan No. 8

of 1950, § 3, 15 Fed. Reg. 3175, reprinted in 5 U.S.C.

app., and in 64 Stat. 1264 (codified at 15 U.S.C. § 41).

Before 1950, Commissioners chose the Chairman from

amongst themselves, and the position rotated

annually. Ch. 311, 38 Stat. 717, 718 (1914). This

consolidation of authority in a presidentially-selected

Chairman represented a significant shift in the

agency’s structure. See Sidney M. Milkis, The

President and the Parties: The Transformation of the

American Party System Since the New Deal 160 (1993)

(arguing that these changes “eroded” the FTC’s

“autonomy”).

The President now can select a Chairman

aligned with his political agenda. Because “[n]ot more

than three of the Commissioners shall be members of

the same political party,” the President, in our twoparty system, will have the option of selecting from at

least two Commissioners of his own party as

candidates for Chairman. 15 U.S.C. § 41. The

Chairman in turn appoints leaders of the FTC’s

enforcement bureaus, who discharge the Chairman’s

priorities through such specialized functions as fair

marketplace rules development, the investigation and

prosecution of deceptive and fraudulent entities, and

the enforcement of antitrust laws. FTC Organization

Chart, Bureaus & Offices, https://www.ftc.gov/aboutftc/bureaus-offices.

President Trump has exercised this authority.

On Inauguration Day 2025, he promoted

Commissioner Andrew Ferguson to Chairman. Upon

his appointment, Chairman Ferguson expressed his

intention to carry out the President’s agenda: “Under

the President’s leadership, we will end the previous

administration’s assault on the American way of life,

and we will usher in a new Golden Age for American

businesses, workers, and consumers.” Press Release,

Fed. Trade Comm’n, Andrew N. Ferguson Takes Over

FTC

Chairman,

(Jan.

22,

2025),

https://www.ftc.gov/news-events/news/pressreleases/2025/01/andrew-n-ferguson-takes-over-ftcchairman. Thus, while the Solicitor General contends

the President must be able to fire Commissioners at

will to further his agenda, the Administration already

has indicated it has the ability to execute the

President’s agenda through presidential appointment

of the FTC Chairman.

Second, the President exercises greater control

over FTC enforcement. In 1935, the FTC could file

suits in federal court for penalties against parties that

violated its cease-and-desist orders. Ch. 311, 38 Stat.

717, 719-20 (1914). Today, under 15 U.S.C. § 45(l),

only the Attorney General may file these punitive

enforcement suits. The FTC has thus lost a measure

of its power to sue to enforce its own regulations, and

accordingly, the President has greater authority over

FTC enforcement actions today than when

Humphrey’s was decided.

If the Administration seeks still more power

over the Commission, it must pursue this through the

democratic political process. Congressional assent to

greater executive control over independent agencies is

achievable, as demonstrated not only by amendments

to the FTC Act, but also by Congress’s elimination of

the “for cause” removal protections for the Federal

Reserve Board in 1933.12 The Executive’s unilateral

power grab here thus violates both the separation of

powers and core democratic values.

IV.

Respect for Practice, Precedent and

Stability Also Requires Upholding

Humphrey’s.

Edmund Burke, a founder of modern

conservatism, advocated for limited government and

gradual reform, guided by his faith in the “latent

wisdom” of past generations. Edmund Burke,

Reflections on the Revolution in France 87 (L.G.

Mitchell ed. Oxford Univ. Press 2020) (1790). James

Madison expressed similar sentiments in The

Federalist No. 49, referencing “that veneration which

time bestows on every thing.” See also Louis J. Virelli

III, Constitutional Traditionalism in the Roberts

Court, 73 U. Pitt. L. Rev. 1, 4 (2011). Overturning

Humphrey’s would run roughshod over these values.

Respect for prior practice has particular

importance in the context of decisions involving the

separation of powers. As this Court recognized, and as

the Solicitor General acknowledged in Seila Law,

“long settled and established practice is a

12 Banking

Act of 1933, ch. 89, § 6(a), 48 Stat. 162, 166-67.

Congress restored the Federal Reserve’s “for cause” removal

protection in 1935 only after intense political debate. See Former

Federal Reserve Governors’ Br. at 8-16, Trump v. Cook, No.

25A312 (U.S. Oct. 29, 2025).

consideration of great weight in a proper

interpretation of constitutional provisons regulating

the relationship between Congress and the

President.” Noel Canning, 573 U.S. at 524 (cleaned

up); Gov’t Br. at 14-15, Seila Law, No. 19-7. Here the

“long settled and established practice” of

multimember commissions with removal protections

dates back to our Founding era; in addition, the

particular “for cause” removal language at issue here

has been included in numerous Congressional

enactments signed by Presidents over the course of

more than half the life of our Nation.

Respect for judicial precedent is no less

important. “Stare decisis is the preferred course

because it promotes the evenhanded, predictable, and

consistent development of legal principles, fosters

reliance on judicial decisions, and contributes to the

actual and perceived integrity of the judicial

process.” Payne v. Tennessee, 501 U.S. 808, 827 (1991).

But

overruling

Humphrey’s

would

require

overturning not just that case, but a string of

subsequent cases. In Wiener, 357 U.S. at 356, a

unanimous Court concluded that “[t]he philosophy of

Humphrey’s Executor, in its explicit language as well

as its implications, preclude[d]” the President from

removing a War Claims Commissioner “merely

because he wanted his own appointees.” In Morrison,

the Court extended Humphrey’s to the Independent

Counsel, finding that “[t]he characterization of the

agencies in Humphrey’s Executor and Wiener as

‘quasi-legislative’ or ‘quasi-judicial’ in large part

reflected our judgment that it was not essential to the

President’s proper execution of his Article II powers

that these agencies be headed up by individuals

removable at will.” 487 U.S. at 690-91 (footnote

omitted). Finally, in Seila Law, 591 U.S. at 204, 220,

the Court recognized Humphrey’s as an exception to

the general rule against congressionally-mandated

removal protections, expressly distinguishing the

FTC’s multimember structure and historical stature

from the CFPB’s “novel” single director structure with

“no basis in history and no place in our constitutional

structure.”

Each factor in the various formulations

articulated by Members of this Court regarding the

rejection of precedent—(1) the nature of the ostensible

error; (2) the quality of the reasoning; (3) workability;

(4) effect on other areas of law; and (5) reliance

interests 13 —cuts against overruling a decision that

has endured for nine decades, been endorsed by large

majorities of this Court, and survived profound shifts

in law, politics, and culture.

First, the alleged “error” involves an Act of

Congress. If the Administration loses, it can advance

its views politically. 14 But if the Court overrules

13 See, e.g., Loper Bright Enters. v. Raimondo, 603 U.S. 369, 407

(2024); Erlinger v. United States, 602 U.S. 821, 862 (2024)

(Kavanaugh, J., dissenting); Dobbs v. Jackson Women’s Health

Org., 597 U.S. 215, 263-90 (2022); Ramos v. Louisiana, 590 U.S.

83, 106 (2020); Janus v. Am. Fed’n of State, Cnty. & Mun. Emps.,

Council 31, 585 U.S. 878, 917 (2018).

14 See In re Aiken Cnty., 645 F.3d 428, 447-48 (D.C. Cir.

2011)(Kavanaugh, J., concurring)(“[A]s President Roosevelt

suggested in the wake of Humphrey’s Executor itself, Congress

and the President remain free to craft legislation that would

increase the accountability of these agencies by making the

agency heads removable at will — accompanied, if Congress

chooses, by more tightly drawn substantive statutes so as to

prevent excessive delegations of power to the Executive Branch

or perceived concentration of power in the President.”).

Humphrey’s, it removes the issue from the political

arena entirely, making it unconstitutional for

Congress to ever create agencies with removal

protections. This would be profoundly undemocratic.

For-cause removal protections represent consistent

legislative action, throughout our history, by

democratically

accountable

Congresses,

with

approval by democratically accountable Presidents.

The President can always petition Congress for

greater control—indeed, Congress has already given

the President more control over the FTC.

Second, as demonstrated above, Humphrey’s is

a thoroughly originalist decision, authored by a protooriginalist Justice, examining constitutional text and

structure and the Framer’s original intent.

Subsequent historical analysis has only reinforced

this analysis. Some of this Court’s most respected

members, including Justice Frankfurter for a

unanimous Court in Wiener and Chief Justice

Rehnquist for the Court in Morrison, have followed

and extended the “philosophy” of Humphrey’s.

Third,

Humphrey’s

remains

eminently

workable. Numerous agency statutes permit

presidential removal for cause, often specifically

inefficiency, neglect of duty, and malfeasance 15 —

language predating the Constitution itself. Jane

Manners & Lev Menand, The Three Permissions:

Presidential Removal and the Statutory Limits of

15 See, e.g., 12 U.S.C. § 242 (Federal Reserve); 39 U.S.C. § 202

(Postal Service); 12 U.S.C. § 4512 (Federal Housing Finance

Agency); 42 U.S.C. § 7171(b)(1) (Federal Energy Regulatory

Commission); 49 U.S.C. § 1111(c) (National Transportation

Safety Board).

Agency Independence, 121 Colum. L. Rev. 1, 6 (2021).

By contrast, jettisoning Humphrey’s and its successor

Supreme Court decisions would radically disturb a

settled legal landscape and immediately threaten the

independence of the Federal Reserve and all other

existing commissions and boards.16

Fourth, overturning Humphrey’s would violate

the separation of powers by vastly expanding

executive power at Congress’s and the Court’s

expense. See Joseph L. Story, Commentaries on the

Constitution of the United States § 517 (“In absolute

governments the whole executive, legislative, and

judicial powers are . . . exclusively confined to a single

individual; and such a form of government is

denominated a despotism, as the whole sovereignty of

the state is vested in him.”). Removal protections

preserve the rule of law and protect against arbitrary

presidential action. See David M. Driesen, The Specter

of Dictatorship: Judicial Enabling of Presidential

16 In

this regard, even if this Court were to find some of the

powers of the FTC irreducibly executive, the severability clause

of the FTC Act would direct that those provisions be severed, not

that the FTC’s removal protections be eliminated. 15 U.S.C. § 57.

As Humphrey’s made clear, the FTC’s removal protections were

central to Congress’s goal: the creation of a body of experts “free

to exercise its judgment without the leave or hindrance of any

other official or any department of the government.” 295 U.S. at

626-27. To allow Commissioners to be removed “at the mere will

of the President might be to thwart, in large measure, the very

ends which Congress sought to realize . . . .” Id. It would equally

thwart the congressional purpose to hold that a President could

at his “mere will” remove a Commissioner so long as back pay

was provided, since that would allow the President to reshape

the FTC in contravention of the congressional design at a trivial

cost. Indeed, if a president may remove Commissioners at will,

the FTC that Congress intended would cease to exist.

Power 5 (2021). No version of unitary executive theory

allows a president to ignore constitutional structures

Congress establishes. See Caleb Nelson, Special

Feature: Must Administrative Officers Serve at the

President’s Pleasure?, N.Y.U. L. Democracy Project

(Sep.

29,

2025),

https://democracyproject.org/posts/mustadministrative-officers-serve-at-the-presidentspleasure. Executive usurpation of constitutional

authority is no less grave than congressional

encroachment. Compare Youngstown Sheet & Tube

Co. v. Sawyer, 343 U.S. 579 (1952), with Immigration

and Naturalization Service v. Chadha, 462 U.S. 919

(1983).

Finally, the reliance interests here are

substantial. Justice Brandeis explained why officials’

reliance interests deserve respect in his dissent in

Myers, 272 U.S. at 295: “protection of the individual,

even if he be an official, from the arbitrary or

capricious exercise of power was [at the Founding]

believed to be an essential of free government.” But

the reliance interests here go far beyond individual

officials. The Administration asks the Court to

deconstruct stabilizing safeguards in our political and

economic system that have existed since the

Founding. From the Nation’s birth, the public, private

businesses, and regulated entities have relied on

these agencies’ independent decisions.

The Administration proposes a profoundly antiBurkean and anti-Madisonian step: radically

restructure a system by eroding constitutional checks

and balances and concentrating all power—including

economic power—in the President’s hands. Accepting

this invitation would overrule a long line of

precedents, violate separation of powers, and deal an

enormous blow to the stability and freedom of our

Nation. This Court should not ratify such a profoundly

anti-originalist attempt by the President to

permanently unbalance the separation of powers.

CONCLUSION

For all the foregoing reasons, Amici submit

that this Court should rule in favor of respondents in

No. 25-332.

Respectfully submitted,

HAMPTON Y. DELLINGER

Counsel of Record

M. ARSALAN SULEMAN

FOLEY HOAG LLP

1717 K Street N.W.

Washington, D.C. 20006

(202) 223-1200

hdellinger@foleyhoag.com

HAROLD HONGJU KOH

SONIA MITTAL

Peter Gruber Rule of Law Clinic

Yale Law School

127 Wall Street, P.O. Box 208215

New Haven, CT 06520-8215

(203) 432-4932

harold.koh@ylsclinics.org

Counsel for Amici Curiae

November 14, 2025

APPENDIX

APPENDIX - LIST OF AMICI CURIAE

Amici Curiae .............................................................. 1a

Donald Ayer

Deputy Attorney General (1989-1990)

Principal Deputy Solicitor General (1986-1988)

United States Attorney, Eastern District of

California (1982-1986)

Board Member, Society for the Rule of Law

Ty Cobb

Special Counsel to the President (Trump) (20172018)

Assistant U.S. Attorney (1980-1986)

Member, Society for the Rule of Law

Benedict S. Cohen

General Counsel, Department of the Army (20062009)

Deputy General Counsel, Dept. of Defense (20012005)

Associate Counsel to the President (Reagan) (19861989)

Member, Society for the Rule of Law

Hon. Mickey Edwards

Member, U.S House of Representatives (R-OK 19771993)

Member of the House Republican Leadership (Chair

of House Republican Policy Committee)

Charter Member, Society for the Rule of Law

Stuart M. Gerson

Acting Attorney General (1993)

Assistant Attorney General (Civil) (1989-1993)

Assistant United States Attorney for the District of

Columbia (1972-1975)

Board Treasurer, Society for the Rule of Law

John Giraudo

Legal Adviser, Office of Legal Counsel, U.S. Dept. of

Justice (1986-1988)

Charter Member, Society for the Rule of Law

Hon. D. Lowell Jensen

U.S. District Judge, Northern District of California

(nominated by Reagan)(1986-2014)

Deputy Attorney General (1985-1986)

Associate Attorney General (1983-1985)

Assistant Attorney General, Criminal Division

(1981-1983)

Charter Member, Society for the Rule of Law

Robert M. Kruger

Associate Counsel to the President (Reagan)(19861989)

Philip Allen Lacovara

Deputy Solicitor General (1972-1973)

Counsel to the Watergate Special Prosecutor (19731974)

President’s Representative (Reagan), District of

Columbia Judicial Nomination Commission (19811986)

Hon. J. Michael Luttig

U.S. Circuit Judge, Court of Appeals for the Fourth

Circuit (nominated by George H.W. Bush) (19912006)

Assistant Attorney General, Office of Legal Counsel

and Counselor to the Attorney General (1990-1991)

Assistant Counsel to the President (Reagan) (19811982)

Board Member, Society for the Rule of Law

Nuala O’Connor

Member, President’s Board on Safeguarding

Americans’ Civil Liberties (George W. Bush) 20042005.

Chief Privacy Officer, Dept. of Homeland Security

(2003-2005)

Chief Counsel, Technology Administration and Chief

Privacy Officer, Dept. of Commerce (2002-2003)

Deputy Director, Policy & Strategic Planning, Dept.

of Commerce (2001-2002)

Member, Society for the Rule of Law

Hon. Thomas E. Petri

Member, U.S. House of Representatives (R-WI 19792015)

Wisconsin State Senate (1973-1979)

Director Crime Studies, President’s Advisory Council

on Executive Organization (Nixon) (1969-1970)

Carter G. Phillips

Assistant to the Solicitor General (1981-1984)

Charter Member, Society for the Rule of Law

Alan Charles Raul

Associate Counsel to the President (Reagan)(19861988)

General Counsel, Office of Management and Budget,

Executive Office of the President (Reagan, George

H.W. Bush)(1988-1989)

General Counsel, U.S. Department of Agriculture

(1989-1993)

Vice Chairman, Privacy and Civil Liberties

Oversight Board (2006-2008)

Board Secretary, Society for the Rule of Law

Paul Rosenzweig

Deputy Assistant Secretary for Policy, Dept. of

Homeland Security (2005-2009)

Charter Member, Society for the Rule of Law

Nicholas Rostow

Special Assistant to the President for National

Security Affairs and Legal Advisor to the National

Security Council (Reagan, George H.W. Bush)(19871993)

Special Assistant to the Legal Advisor, U.S. Dept. of

State (1985-1987)

Charter Member, Society for the Rule of Law

Robert B. Shanks

Deputy Assistant Attorney General, Office of Legal

Counsel (1981-1984)

General Counsel, Overseas Private Investment

Corporation (1985-1987)

General Counsel, Peace Corps (2017-2020)

Charter Member, Society for the Rule of Law

Hon. Christopher Shays

Member, U.S House of Representatives (R-CT 19872009)

J. Michael Shepherd

Associate Counsel to the President (Reagan)(19861987)

Deputy Assistant Attorney General (1984-1986)

Advisory Council Member, Society for the Rule of

Law

Stan Twardy, Jr.

United States Attorney, District of Connecticut

(1985-1991)

Charter Member, Society for the Rule of Law

David Barclay Waller

Senior Associate Counsel to the President (Reagan)

(1981-1986)

Assistant Secretary of Energy, International Affairs

and Energy Emergencies (1986-1989)

Peter J. Wallison

Counsel to the President (Reagan)(1986-1987)

General Counsel, U.S. Department of the Treasury

(1981-1985)

Counsel to the Vice President

(Ford/Rockefeller)(1975-1976)

Hon. William F. Weld

Governor of Massachusetts (R-MA 1991-1997)

Assistant Attorney General, Criminal Division

(1986-1988)

Hon. Christine Todd Whitman

Governor of New Jersey (R-NJ 1994-2001)

Administrator, Environmental Protection Agency

(2001-2003)

Wendell L. Willkie II

Associate Counsel to the President (Reagan)(19841985)

General Counsel, U.S. Dept. of Education (19851988)

General Counsel, U.S. Dept. of Commerce (19891993)

Acting Deputy Secretary of Commerce (1992-1993)

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.