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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Text

No. 25-332

In the Supreme Court of the United

States

____________________________

DONALD J. TRUMP, PRESIDENT OF THE

UNITED STATES, et al.,

Petitioners,

REBECCA K. SLAUGHTER, et al.,

Respondents.

On Writ of Certiorari

Before Judgment to the United States District Court

for the District of Columbia

BRIEF OF OPEN MARKETS INSTITUTE AS

AMICUS CURIAE IN SUPPORT OF RESPONDENTS

Tara Pincock

Sandeep Vaheesan

OPEN MARKETS

INSTITUTE

655 15th St. NW,

Ste. 310

Washington, D.C. 20005

Jamie Crooks*

FAIRMARK PARTNERS,

LLP

400 7th Street, NW

Ste. 304

Washington, D.C. 20004

jamie@fairmarklaw.com

*Counsel of Record

Counsel for Amicus Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... iii

INTEREST OF THE AMICUS CURIAE ................... 1

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

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

I. Congress has the constitutional authority and

sensible reasons to limit the President’s removal

powers. ..................................................................... 5

II. Beginning with the First Congress, the

legislative branch has put restraints on the

President’s ability to remove members of federal

agencies and commissions. .................................... 10

III.

The Federal Trade Commission’s record

vindicates Congress’s decision to design it as a

multimember, bipartisan agency. ......................... 14

Landmark industry studies ....................... 15

ii.

Major rules to protect consumers .............. 18

CONCLUSION.......................................................... 21

TABLE OF AUTHORITIES

Cases

Am Fin. Servs. Ass’n v. FTC,

767 F.2d 957 (D.C. Cir. 1985)................................ 20

Bowsher v. Synar,

478 U.S. 714 (1986) ............................................. 3, 6

FTC v. Actavis, Inc.,

570 U.S. 136 (2013) ............................................... 18

Humphrey’s Executor v. United States,

295 U.S. 602 (1935) ............................. 2, 3, 8, 13, 20

Impax Labs., Inc. v. FTC,

994 F.3d 484 (5th Cir. 2021) ................................. 18

McCulloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819) ....................... 2, 6, 13

Morrison v. Olson,

487 U.S. 654 (1988) ............................................. 6, 7

Myers v. United States,

272 U.S. 52 (1926) ............................................... 3, 6

Nat’l Petroleum Refiners Ass’n v. FTC,

482 F.2d 672 (D.C. Cir. 1973)................................ 19

Seila Law LLC v. Consumer Fin. Prot. Bureau,

591 U.S. 197 (2020) ............................................. 5, 6

iii

Constitution

U.S. Const. art. I, § 8, cl. 18........................................ 3

U.S. Const. art. I, § 9 .............................................. 1, 5

U.S. Const. art. II, § 1 ............................................. 2, 6

U.S. Const. art. II, § 3 ............................................. 2, 6

Statutes

15 U.S.C. § 41 .......................................................... 3, 7

15 U.S.C. § 46(b) ....................................................... 15

15 U.S.C. § 46(g) ....................................................... 18

3 Stat. 582 (1820) ...................................................... 13

Celler-Kefauver Act, Pub. L. No. 81-899, 64 Stat. 1125

(1950) (codified at 15 U.S.C. § 18) ......................... 17

Federal Cigarette Labeling and Advertising Act of

1965, Pub. L. No. 89-82, 79 Stat. 282, (codified at 15

U.S.C. §§ 1331–40) ................................................ 19

Packers and Stockyards Act of 1921, Pub. L. No. 67–

51, 42 Stat. 159 (codified as amended at 7 U.S.C.

§§ 181–229c) ........................................................... 16

Public Utility Holding Company Act of 1935, Pub. L.

No. 74-333, 49 Stat. 803 ........................................ 17

Legislative Materials

1 Annals of Cong. (1789) (Joseph Gales ed., 1834) 6, 9

Regulations

16 C.F.R. § 444.2 ....................................................... 20

30 Fed. Reg 9485 (July 29, 1965) ............................. 19

Funeral Industry Practices Trade Regulation Rule, 59

Fed. Reg. 1592, 611 (Jan. 11, 1994) (codified at 16

C.F.R. § 453) ........................................................... 19

Trade Regulation Rule; Credit Practices, 49 Fed. Reg.

7740 (Mar. 1, 1984) ................................................ 20

Unfair or Deceptive Advertising and Labeling of

Cigarettes in Relation to Health Hazards of

Smoking, 29 Fed. Reg. 8324 (July 2, 1964) .......... 19

Other Authorities

Andrew I. Gavil & William E. Kovacic, A Defense of

the “For Cause” Termination Provisions of the

Federal Trade Commission Act, Progressive Pol’y

Inst. (July 2025) ..................................................... 14

Christine Kexel Chabot, Interring the Unitary

Executive, 98 Notre Dame L. Rev. 129 (2022) 3, 7, 9

Christine Kexel Chabot, Is the Federal Reserve

Constitutional? An Originalist Argument for

Independent Agencies, 96 Notre Dame L. Rev. 1

(2020) ........................................................... 4, 11, 12

Dave Michaels, Top Justice Department Antitrust

Officials Fired Amid Internal Feud, Wall St. J. (July

29, 2025) ................................................................. 15

David A. Hyman & William E. Kovacic, Can’t Anyone

Here Play This Game? Judging the FTC’s Critics, 83

Geo. Wash. L. Rev. 1948 (2015) ............................ 15

Derek C. Bok, Section 7 of the Clayton Act and the

Merging of Law and Economics, 74 Harv. L. Rev.

226 (1960)............................................................... 17

Edward S. Corwin, Tenure of Office and the Removal

Power under the Constitution, 27 Colum. L. Rev. 353

(1927) ............................................................... 11, 13

Fed. Trade Comm’n, A Look Behind the Screens:

Examining the Data Practices of Social Media and

Video Streaming Services (Sept. 2024) ................. 15

Fed. Trade Comm’n, Pay-for-Delay: How Drug

Company Pay-Offs Cost Consumers Billions (Jan.

2010) ....................................................................... 18

Fed. Trade Comm’n, Report of the Federal Trade

Commission on the Meat-Packing Industry

(1919) ..................................................................... 16

Fed. Trade Comm’n, Report of the Federal Trade

Commission on the Merger Movement: A Summary

Report (1948) ......................................................... 17

Fed. Trade Comm’n, Utility Corporations, Final

Report of the Federal Trade Commission to the

Senate of the United States (1935) ....................... 17

Ganesh Sitaraman, The Political Economy of the

Removal Power, 134 Harv. L. Rev. 352 (2020) ..... 14

Jack Goldsmith & John F. Manning, The Protean Take

Care Clause, 164 U. Pa. L. Rev. 1835 (2015) .......... 6

Jed H. Shugerman, The Indecisions of 1789:

Inconstant Originalism and Strategic Ambiguity,

171 U. Pa. L. Rev. 753 (2023) ................................ 10

Jennifer Schuessler & Minho Kim, After Declining to

Give Trump a Sword for King Charles, A Museum

Leader is Out, N.Y. Times (Oct. 2, 2025) .............. 10

Jerry

Mashaw,

Recovering

American

Administrative Law: Federalism Foundations,

1787-1801, 115 Yale L.J. 1256 (2005) ........... 6, 7, 12

John F. Manning, Foreword: The Means of

Constitutional Power, 128 Harv. L. Rev. 1 (2014) .. 2

John F. Manning, Separation of Powers as Ordinary

Interpretation, 124 Harv. L. Rev. 1939 (2011).... 5, 8

Lawrence Lessig & Cass R. Sunstein, The President

and the Administration, 94 Colum. L. Rev. 1

(1994) ................................................................. 4, 13

Marshall J. Breger & Gary J. Edles, Established by

Practice: The Theory and Operation of Independent

Federal Agencies, 52 Admin. L. Rev. 1111

(2000) ........................................................... 4, 11, 13

Noah A. Rosenblum, History and Fetishism in the New

Separation of Powers Formalism, 173 U. Pa. L. Rev.

2151 (2025)......................................................... 8, 12

Patricia A. McCoy, Constitutionalizing Financial

Instability, 2020 U. Chi. L. Rev. Online 66 .... 12, 13

Peter L. Strauss, The Place of Agencies in

Government: Separation of Powers and the Fourth

Branch, 84 Colum. L. Rev. 573 (1984) ................ 2, 8

vii

William E. Kovacic & Marc Winerman, Outpost Years

for a Start-Up Agency: The FTC from 1921-1925, 77

Antitrust L.J. 145 (2012) ....................................... 16

INTEREST OF THE AMICUS CURIAE

The Open Markets Institute (OMI) is a nonprofit organization dedicated to protecting democracy

and individual liberties from concentrated economic

power and control. OMI does so by promoting fair

competition throughout our political economy, a

broadly shared prosperity, and innovation that serves

the public interest. OMI regularly provides expertise

on antitrust law and competition policy to Congress,

federal agencies, courts, journalists, and members of

the public. It does not accept any funding or donations

from for-profit corporations. 1

SUMMARY OF ARGUMENT

Congress has broad constitutional authority to

structure the entire federal government. This power

includes creating new departments and offices and

restricting the President’s authority to remove their

leaders. The Necessary and Proper Clause holds that

Congress can make “all Laws which shall be necessary

and proper for carrying into Execution the foregoing

Powers, and all other Powers vested by this

Constitution in the Government of the United States,

or in any Department or Officer thereof.” U.S. Const.

art. I, § 9 (emphasis added). Given its breadth, this

Article I provision has been referred to as “a kind of

master clause” that “assigns Congress authority to

implement all the ‘Powers’ vested by the Constitution

anywhere in the government.” John F. Manning,

Foreword: The Means of Constitutional Power, 128

Under this Court’s Rule 37.6, amicus curiae state that no

counsel for a party authored this brief in whole or in part, that

no such counsel or party made a monetary contribution intended

to fund the brief’s preparation or submission, and that no person

other than amicus curiae and its counsel made such a monetary

contribution.

Harv. L. Rev. 1, 63 (2014). Accordingly, in the words

of Professor Peter Strauss, “The text and structure of

the Constitution impose few limits on Congress’s

ability to structure administrative government.” Peter

L. Strauss, The Place of Agencies in Government:

Separation of Powers and the Fourth Branch, 84

Colum. L. Rev. 573, 597 (1984).

Instead of recognizing the Constitution’s broad

grant of legislative power, President Trump and his

allies argue that the President has unlimited power to

fire anyone in the executive branch, for any reason,

and at any time. They base their argument on the

sparse text of the Vesting and Take Care Clauses in

Article II of the Constitution. U.S. Const. art. II, §§ 1,

3. Even though the FTC Act expressly allows the

President to remove commissioners for “inefficiency,

neglect of duty, or malfeasance in office,” 15 U.S.C. §

41, they claim that the executive cannot ensure that

the laws are faithfully executed if he does not have

absolute removal power. This argument runs directly

counter to the plain text of the Constitution and

longstanding practice and would open the door to

potentially extreme abuses of power. Thus, this Court

must uphold Humphrey’s Executor v. United States,

295 U.S. 602 (1935), and Congress’s broad power

under the Necessary and Proper Clause to structure

the federal government as its sees fits, McCulloch v.

Maryland, 17 U.S. (4 Wheat.) 316, 415-16, 420 (1819),

including to guard against blatant corruption and

naked partisanship in breach of the President’s duty

to take care of the faithful execution of the law.

While Article II vests executive power in

the President and requires that he ensure the laws are

faithfully executed, the Constitution grants Congress

expansive authority under the Necessary and Proper

Clause to structure the whole federal government.

U.S. Const. art. I, § 8, cl. 18. These two powers go hand

in hand. Congress can mandate that agency heads can

be removed only for cause by the President but cannot

interfere with the President’s duty to see that the laws

are faithfully executed by reserving removal authority

for itself in statute. Myers v. United States, 272 U.S.

52, 163 (1926); Bowsher v. Synar, 478 U.S. 714, 726

(1986).

Congress has legitimate reasons for protecting

agency officials from at-will removal. It has long been

understood that those who hold office “only during the

pleasure of another cannot be depended upon to

maintain an attitude of independence against the

latter's will.” Humphrey’s Executor, 295 U.S. at 629.

That’s why Congress acted to ensure that – if there is

a conflict between the President’s wishes on one side

and statutory laws as enacted by Congress on the

other – officials at bipartisan, multimember agencies

should not fear losing their job if they apply and follow

the law. The legislative requirement that officials be

removed only for “inefficiency, neglect of duty, or

malfeasance in office,” 15 U.S.C. § 41, protects agency

leaders committed to carrying out their statutory

responsibilities while also enabling the President to

fulfill his Article II duty to faithfully execute the law

by removing corrupt or indolent officials. Christine

Kexel Chabot, Interring the Unitary Executive, 98

Notre Dame L. Rev. 129, 147 (2022).

Since the late eighteenth century,

Congress has repeatedly placed limitations on the

President’s removal powers. The First Congress

created the Sinking Fund Commission in 1790 as a

multimember body and at least two of its members—

the Vice President and the Chief Justice—could not be

removed from the commission by President

Washington. Christine Kexel Chabot, Is the Federal

Reserve Constitutional? An Originalist Argument for

Independent Agencies, 96 Notre Dame L. Rev. 1, 49-50

(2020). This commission was not an aberration:

During the first one hundred years of the Republic,

Congress restricted the President’s ability to remove

officials in several agencies, including the Second

Bank of the United States and the Interstate

Commerce Commission. Lawrence Lessig & Cass R.

Sunstein, The President and the Administration, 94

Colum. L. Rev. 1, 30 (1994); Marshall J. Breger &

Gary J. Edles, Established by Practice: The Theory

and Operation of Independent Federal Agencies, 52

Admin. L. Rev. 1111, 1113-14 (2000). Accordingly,

Congress has possessed and exercised the power to

restrict the President’s removal authority since the

founding of the United States. Given that it was not

unconstitutional for Congress to restrict the

President’s removal powers in 1790, it likewise was

not unconstitutional when it did so once again in the

FTC Act in 1914. This Court should be skeptical of the

Petitioners’ claim that the President has newfound

powers that did not exist for the past 230 years.

Congress’s decision to set up the Federal

Trade Commission as a multimember, bipartisan

agency has been vindicated by experience. For the

past century, the FTC has been front and center in

protecting the American public from unfair corporate

practices. In addition to enforcement actions that hold

bad actors accountable, the FTC has conducted

industry studies that informed major federal

legislation and undertaken rulemakings to protect

citizens, consumers, and independent businesses from

corporate misconduct. One reason the FTC has been

able to undertake politically fraught, multi-year

investigations and rulemakings is that the President

could not remove commissioners without cause. Over

the past century, the FTC has produced in-depth

studies of key sectors such as meatpacking, utilities,

and pharmaceuticals. The FTC has also written rules

that outlawed coercive and deceptive practices in

funeral and consumer credit markets.

ARGUMENT

Congress has the constitutional authority

and sensible reasons to limit the

President’s removal powers.

Congress has expansive authority to structure

the entire federal government and restrict the

President’s ability to remove officials at executive

agencies and departments. Under the Necessary and

Proper Clause of Article I, Congress can make “all

Laws which shall be necessary and proper for carrying

into Execution the foregoing Powers, and all other

Powers vested by this Constitution in the Government

of the United States, or in any Department or Officer

thereof.” U.S. Const. art. I, § 9 (emphasis added). The

Necessary and Proper Clause puts decisions on “what

kinds of officers—in what departments, with what

responsibilities—the Executive Branch requires” in

the hands of Congress. Seila Law LLC v. Consumer

Fin. Prot. Bureau, 591 U.S. 197, 266 (2020) (Kagan, J.,

concurring in part). Accordingly, “the Necessary and

Proper Clause gives Congress express power to

prescribe the means by which both the executive and

judicial powers are carried into execution.” John F.

Manning, Separation of Powers as Ordinary

Interpretation, 124 Harv. L. Rev. 1939, 2006 (2011).

As Chief Justice Marshall stated in one of the

canonical Supreme Court decisions in American

history, the Necessary and Proper Clause empowered

Congress “to exercise its best judgment in the

selection of measures to carry into execution the

constitutional powers of government” and “avail itself

of experience, to exercise its reason, and to

accommodate its legislation to circumstances” so that

it can enact legislation “adapted to the various crises

of human affairs.” McCulloch v. Maryland, 17 U.S. (4

Wheat.) 316, 415-16, 420 (1819).

In contrast to Congress’s express authority

under the Necessary and Proper Clause, the text of

the Constitution is silent regarding the President’s

removal powers. See 1 Annals of Cong. 486 (1789)

(Joseph Gales ed., 1834) (statement of Rep. Lawrence)

(“In the case of removal, the Constitution is silent . . .

.”). As such, this Court has invoked the Vesting and

Take Care Clauses, U.S. Const. art. II, §§ 1, 3, to give

the President some power to remove those who

exercise executive power. Seila Law, 591 U.S. at 227;

Morrison v. Olson, 487 U.S. 654 (1988). The

President’s implied duty under the Take Care Clause

“encompasses the duty to ensure competence,

observance of law, and prevention of misconduct.”

Jack Goldsmith & John F. Manning, The Protean Take

Care Clause, 164 U. Pa. L. Rev. 1835, 1842 (2015).

Given the text of Articles I and II, Congress

may restrict the President’s powers as long as it does

not interfere with the President’s duty to take care of

the faithful execution of the law. Myers v. United

States, 272 U.S. 52, 163 (1926); Bowsher v. Synar, 478

U.S. 714, 726 (1986). In this regard, the President’s

“constitutional powers are feeble, [while] Congress’s

powers are broad.” Jerry L. Mashaw, Recovering

American

Administrative

Law:

Federalism

Foundations, 1787-1801, 115 Yale L.J. 1256, 1271

(2005). Accordingly, the “Constitution’s silence on

most matters administrative provides extremely

modest textual support for the notion that all

administration was to be firmly and exclusively in the

control of the President.” Id.

In the FTC Act, Congress used its powers under

the Necessary and Proper Clause to structure the FTC

to carry out its statutory mandate while also

recognizing the President’s duties to faithfully execute

the laws. Congress did not grant the respondent

absolute protection from removal. That would be a

very different case than the one here and likely would

infringe on the President’s Article II powers. Instead,

Congress decided that the President can remove

commissioners for “inefficiency, neglect of duty, or

malfeasance in office,” 15 U.S.C. § 41. This legislative

choice empowers FTC commissioners to fulfill their

statutory obligations while still enabling the

President to carry out his constitutional duty to take

care that the laws are faithfully executed by removing

commissioners who flout their official responsibilities

or engage in corruption. Christine Kexel Chabot,

Interring the Unitary Executive, 98 Notre Dame L.

Rev. 129, 147 (2022). Indeed, by restricting the

President’s removal authority, these protections can

reinforce his obligation to “ensure faithful execution

by enabling independent agencies to prioritize the law

over the President’s immediate political wishes.” Id.

at 192.

But the President and supporting amici argue

that the Constitution grants the President complete

authority to remove agency heads. This argument

fails because the text of Article II, whether in the

Vesting or Take Care Clauses, grants the President no

such power. As Chief Justice Rehnquist wrote for the

majority in Morrison, this theory “depends upon an

extrapolation from general constitutional language

which we think is more than the text will bear.”

Morrison, 487 U.S. at 690 n.29. Whereas some state

constitutions contain express separation of powers

clauses, the U.S. Constitution does not. Noah A.

Rosenblum, History and Fetishism in the New

Separation of Powers Formalism, 173 U. Pa. L. Rev.

2151, 2168 (2025); see also Manning, Separation of

Powers, supra, at 1944 (“[T]he Constitution contains

no Separation of Powers Clause. . . . [And] [t]he

historical record, moreover, reveals no one baseline for

inferring what a reasonable constitutionmaker would

have understood ‘the separation of powers’ to mean in

the abstract.”). On the contrary, a holistic

examination of the nation’s foundational document

reveals that “[t]he text and structure of the

Constitution impose few limits on Congress's ability

to structure administrative government.” Peter L.

Strauss, The Place of Agencies in Government:

Separation of Powers and the Fourth Branch, 84

Colum. L. Rev. 573, 597 (1984).

This Court has recognized “that 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.” Humphrey’s

Executor v. United States, 295 U.S. 602, 629 (1935).

With this understanding, Congress has good reason

for protecting agency officials from at-will removal in

exercising its powers under the Necessary and Proper

Clause. Agency members should never be tempted or

pressured to violate their legal duties in order to

pander to the President. At times, they may have to

make decisions that are not politically expedient.

Granting job protections to agency officials can

empower them to carry out the statutory duties that

Congress gave them, even if it displeases the

President and his advisors.

This fear of presidential pressure on inferior

officers to violate the law dates to the founding of the

United States. When the House debated the

President’s removal powers in 1789, some

Representatives expressed serious concern that

unlimited removal authority could open the door to

major abuses of power. An absolute removal power

“might allow the President to evade the law.” Chabot,

Interring the Unitary Executive, supra, at 156. Rep.

William L. Smith worried that the President could

compel officers to thwart Congress’s directives if he

were able to “threaten[] him with a removal.” Annals

of Cong., supra, at 472 (statement of Rep. Smith). But

if the officer had tenure, he could “dare to defy the

shafts of malevolence” and “Machiavelian [sic] policy”

of the President. Id.

Indeed, this case only underscores why

Congress provided job protections to certain officials.

This case involves a civil servant who has ably served

under three administrations. She was originally

nominated to her position by President Trump in 2018

and nominated for a second term by President Biden

in 2023. Earlier this year though, President Trump

attempted to fire her not because of any failure in her

official capacity but instead because she was alleged

to have different priorities than the White House did.

If the heads of agencies believe that they can be

dismissed without cause and without recourse, they

may neglect or flout their statutory duties and opt to

please the President instead.

While the respondent was targeted because of

purported disagreements on policy, another federal

employee allegedly lost his position because he

followed the law instead of pleasing the President.

Todd Arrington was until recently the director of the

Dwight D. Eisenhower Presidential Library.

According to reports, Mr. Arrington was forced to

resign after 30 years of service because he refused to

give President Trump a sword from the Eisenhower

collection. The President wanted to give the sword to

King Charles during his state visit to the United

Kingdom. Mr. Arrington, however, refused to hand it

over because, under the law, all items housed at

presidential libraries belong to the U.S. Government

and must be preserved for the American public.

Jennifer Schuessler & Minho Kim, After Declining to

Give Trump a Sword for King Charles, A Museum

Leader is Out, N.Y. Times (Oct. 2, 2025),

https://www.nytimes.com/2025/10/02/arts/design/tru

mp-eisenhower-king-charles-sword.html. If the story

is true, Mr. Arrington’s decision to follow the law

instead of pleasing the President made him unfit for

the job. He did not fail to take care of the law, nor did

he impede the president’s ability to properly execute

the law, and yet the result speaks for itself.

II.

Beginning with the First Congress, the

legislative branch has put restraints on

the President’s ability to remove members

of federal agencies and commissions.

Since the founding of the United States,

Congress has placed limitations on the President’s

ability to remove officers of certain agencies. The First

Congress intensely debated the question of the

President’s constitutional removal power. Given the

varied views on legislative and executive removal

powers and lack of broad agreement, let alone

consensus, this Congress reached what could be called

the “Indecisions of 1789.” Jed H. Shugerman, The

Indecisions of 1789: Inconstant Originalism and

Strategic Ambiguity, 171 U. Pa. L. Rev. 753 (2023).

While some members endorsed absolute removal

authority for the President under the Constitution,

this view commanded support from “a mere fraction of

a fraction, a minority of a minority.” Edward S.

Corwin, Tenure of Office and the Removal Power

under the Constitution, 27 Colum. L. Rev. 353, 369

(1927).

At the time, “Congress emphatically did not

imagine that all federal administrative activities

should be performed by officials lodged in

departments and accountable directly and exclusively

to the President.” Mashaw, supra, at 1303. For

example, Congress ensured that the Department of

Treasury, which was created in 1789, was insulated

from the President by (1) not labeling it as an

executive department, (2) directing the Secretary of

Treasury to report to Congress, not the president, and

(3) “restrict[ing] the President's power to remove the

comptroller of the department.” Marshall J. Breger &

Gary J. Edles, Established by Practice: The Theory

and Operation of Independent Federal Agencies, 52

Admin. L. Rev. 1111, 1117-18 (2000).

In line with this understanding of the

constitutional division of power, the First Congress

created an office over which the President had

incomplete removal power. In 1790, it established the

Sinking Fund Commission. This multimember body

was established to pay off the national debt by

distributing funds that had been allocated by

Congress for the purpose. Christine Kexel Chabot, Is

the Federal Reserve Constitutional? An Originalist

Argument for Independent Agencies, 96 Notre Dame L.

Rev. 1, 41-43 (2020). The Sinking Fund Commission

consisted of Alexander Hamilton, Thomas Jefferson,

John Adams, John Jay, and Edmund Randolph

(respectively, the Secretaries of Treasury and State,

the Vice President, the Chief Justice, and the

Attorney General). Id. at 53.

Under the Constitution, President Washington

could not remove the Vice President or the Chief

Justice from their offices, and thus, could not remove

them from the Commission. Congress did this on

purpose because it wanted the Commission to be

partly insulated from the executive. Rosenblum,

supra, at 2174-75. For the creators of the Commission,

this protection from complete presidential control was

necessary to prevent the President from interfering

with its decisions and commandeering funds for more

politically expedient uses. Chabot, Federal Reserve,

supra, at 37-38.

Early Congresses “acted in [the] spirit of

pragmatic compromise” regarding questions about the

separation of powers. Mashaw, supra, at 1292. They

“created departments and officers, charged them with

administrative tasks, and subjected them to political

supervision in a variety of ways that exhibit modest

concern for rigid or formal conceptions of the

separation of powers.” Id. at 1291. Rather than any

congressional agreement on constitutional removal

power for the President, what emerged in the early

years of the United States were “familiar modern

concerns and administrative techniques” for

promoting national development and defense. Id. at

1277.

Congress continued this practice of restricting

presidential removal authority in the nineteenth

century. In 1816, the federal legislature created the

Second Bank of the United States, “which by statute

had twenty-five directors, only five of whom could be

appointed or removed by the president.” Patricia A.

McCoy, Constitutionalizing Financial Instability,

2020 U. Chi. L. Rev. Online 66, 69. This powerful

institution has been called “the first truly

independent agency in the republic’s history.”

Lawrence Lessig & Cass R. Sunstein, The President

and the Administration, 94 Colum. L. Rev. 1, 30

(1994). Notably, the Court upheld the creation of the

Second Bank as a legitimate exercise of Congress’s

powers under the Necessary and Proper Clause.

McCulloch, 17 U.S. at 316. In the Tenure of Office Act

of 1820, Congress enacted fixed, four-year terms for

certain executive officials including district attorneys

and stated they could be “be removable from office at

pleasure.” 3 Stat. 582 (1820). Given the explicit grant

of removal power to the President, this Act suggested

that the President’s absolute removal power is

statutory, not constitutional, in origin. Corwin, supra,

at 377. In line with its broad power to structure the

federal government, Congress during the Civil War

established the Office of the Comptroller of the

Currency and limited the President’s power to remove

the comptroller. McCoy, supra, at 69-70.

In 1887, Congress established the Interstate

Commerce Commission (ICC) to regulate the railroad

industry. Breger & Edles, supra, at 1113-14. As a

multimember, bipartisan commission, the ICC’s

structure became the model for many other regulatory

agencies that exist today. Id. at 1137-38. Justice

Sutherland described this agency type as “a body of

experts who shall gain experience by length of

service—a body which shall be independent of

executive authority, except in its selection, and free to

exercise its judgment without the leave or hindrance

of any other official or any department of the

government.” Humphrey’s Executor, 295 U.S. at 62526. Even as it became the template for modern

multimember agencies, restrictions on the President’s

power to remove commissioners at the ICC dated to

earlier offices like the Sinking Fund Commission,

In addition to being in clear conflict with the

text of the Necessary and Proper Clause in Article I,

conferring absolute removal authority on the

President would ignore 230 years of practice. It is odd

that after more than two centuries, the current

President would claim constitutional powers that his

predecessors did not enjoy, based solely on a theory

developed by a small clique of elite lawyers beginning

in the 1980s. Ganesh Sitaraman, The Political

Economy of the Removal Power, 134 Harv. L. Rev. 352,

376-77 (2020).

III. The Federal Trade Commission’s record

vindicates Congress’s decision to design it

as a multimember, bipartisan agency.

For more than a century, the FTC has ably

served the American people. More than just an

enforcement body, the FTC’s industry studies laid the

groundwork for major legislation while its

rulemakings reshaped markets to the benefit of

consumers and businesses. The FTC could

successfully undertake projects that required multiyear planning and execution, in part, because its

leadership could operate free of arbitrary presidential

interference. See Andrew I. Gavil & William E.

Kovacic, A Defense of the “For Cause” Termination

Provisions of the Federal Trade Commission Act,

Progressive Pol’y Inst. 16 (July 2025) (“[F]or cause

protections have supported an independence norm

that promotes integrity in government, impartial

decision-making,

and

the

rule

law.”),

https://www.progressivepolicy.org/wpcontent/uploads/2025/07/PPI-A-Defense-of-the-ForCause-Termination-Provisions-of-the-FTC-Act.pdf.

By comparison, an executive department in which

officials can be removed at will by the President is

more vulnerable to improper pressures from the

White House. See, e.g., Dave Michaels, Top Justice

Department Antitrust Officials Fired Amid Internal

Feud,

Wall

St.

(July

29,

2025),

https://www.wsj.com/us-news/law/top-justicedepartment-antitrust-officials-fired-amid-internalfeud-0c98d57c. To be sure, the FTC, much like any

century-old institution, has had its ups and downs.

See generally David A. Hyman & William E. Kovacic,

Can’t Anyone Here Play This Game? Judging the

FTC’s Critics, 83 Geo. Wash. L. Rev. 1948 (2015). But

a non-exhaustive review of the FTC’s investigatory

and regulatory accomplishments shows that Congress

was wise when it decided to establish it as a

multimember, bipartisan commission.

Landmark industry studies

Congress authorized the FTC to conduct

industry-wide studies. In addition to investigations

into suspected violations of the FTC and Clayton Acts,

the FTC is empowered to undertake studies of entire

markets and sectors. 15 U.S.C. § 46(b). In 2024, the

FTC completed an investigation of the data collection,

usage, and sharing practices of leading social media

and streaming companies. Fed. Trade Comm’n, A

Look Behind the Screens: Examining the Data

Practices of Social Media and Video Streaming

Services (Sept. 2024). Historically, FTC studies laid

the foundation for major legislative enactments to

reform sectors such as meatpacking, utilities, and

pharmaceuticals.

At the request of President Woodrow Wilson

during World War I, the FTC conducted a

groundbreaking investigation into the meatpacking

industry, focusing on the “Big Five” packers—Swift,

Armour, Morris, Wilson, and Cudahy—who

dominated the national supply of beef, pork, and

mutton. William E. Kovacic & Marc Winerman,

Outpost Years for a Start-Up Agency: The FTC from

1921-1925, 77 Antitrust L.J. 145, 196 (2012). The

investigation uncovered widespread abuses of power,

including collusive and unfair competitive practices

across transportation, storage, and retail meat

markets. Fed. Trade Comm’n, Report of the Federal

Trade Commission on the Meat-Packing Industry

(1919), vols. I–V.

The findings of the FTC report were

instrumental in the drafting and passage of the

Packers and Stockyards Act of 1921, which remains a

cornerstone of antitrust and fair-trade regulation in

agriculture. The Act gave the U.S. Department of

Agriculture (USDA) the authority to oversee packers,

stockyards, and live poultry dealers, focusing on

deceptive, discriminatory, and unfair trade practices.

Packers and Stockyards Act of 1921, Pub. L. No. 67–

51, 42 Stat. 159 (codified as amended at 7 U.S.C.

§§ 181–229c).

Beginning in 1928, the FTC, at the direction of

the Senate, undertook a massive, multi-year study

into the structure, conduct, and abuses of public

utility holding companies. Over the course of the

investigation, the FTC produced more than 95

volumes of reports. It documented practices such as

pyramidal ownership structures that concentrated

control in the hands of a few promoters with minimal

investment; overleveraging and excessive holding

company layers; self-dealing within corporate groups

that inflated rates paid by customers; and a

systematic propaganda campaign by private utilities

in schools, colleges, and the press against public

ownership and effective public regulation. Fed. Trade

Comm’n, Utility Corporations, Final Report of the

Federal Trade Commission to the Senate of the United

States (1935).

Congress relied on the FTC’s reports for

enacting the Public Utility Holding Company Act of

1935 (PUHCA). The law abolished byzantine holding

company structures, generally confined holding

companies to operations in a single integrated

geographic area, and required approval from the

Securities and Exchange Commission before the

acquisitions of new systems or the issuance of

securities. Public Utility Holding Company Act of

1935, Pub. L. No. 74-333, 49 Stat. 803 (repealed 2005).

PUHCA established more economically and

operationally coherent utility systems across the

country and placed holding companies on a much

sounder financial footing.

In 1949, the FTC completed a major study of

merger activity during the 1940s. The FTC concluded

that mergers and acquisitions contributed to the loss

of many independent enterprises and the greater

centralization of business ownership. Fed. Trade

Comm’n, Report of the Federal Trade Commission on

the Merger Movement: A Summary Report (1948).

This report helped motivate the passage of the CellerKefauver Anti-Merger Amendments of 1950, which

strengthened Section 7 of the Clayton Act. Derek C.

Bok, Section 7 of the Clayton Act and the Merging of

Law and Economics, 74 Harv. L. Rev. 226, 231 (1960).

This law authorized the government to challenge both

stock and asset acquisitions and non-horizontal

mergers. Celler-Kefauver Act, Pub. L. No. 81-899, 64

Stat. 1125 (1950) (codified at 15 U.S.C. § 18).

More recently, between 2002 and 2009, the

Federal Trade Commission conducted a 6(b) study

into settlement agreements between brand-name

pharmaceutical companies and potential generic

entrants. The study focused on so-called “pay-fordelay” or reverse payment agreements—settlements

in which a brand-name manufacturer offers a generic

competitor consideration in exchange for delaying the

launch of a competitive product. Fed. Trade Comm’n,

Pay-for-Delay: How Drug Company Pay-Offs Cost

Consumers Billions (Jan. 2010). The study revealed

that from 2005 to 2009, the number of settlements

involving payments and delayed entry increased

significantly, particularly following several appellate

court decisions that upheld the agreements. The FTC

estimated that pay-for-delay agreements cost U.S.

consumers $3.5 billion per year in higher prescription

drug costs. Id. at 2.

This study provided the evidentiary and

analytical foundation for the FTC’s successful

enforcement

campaign

against

pay-for-delay

agreements. Notably, the Supreme Court in 2013 held

that reverse payment settlements are subject to

antitrust scrutiny. FTC v. Actavis, Inc., 570 U.S. 136

(2013). The Court emphasized that large, unexplained

payments from a patent holder to a generic challenger

can signal collusive intent, especially when they

cannot be justified by avoided litigation costs or the

provision of services. Id. at 157. Since Actavis, the

FTC has brought successful cases targeting reverse

payment settlements. E.g., Impax Labs., Inc. v. FTC,

994 F.3d 484 (5th Cir. 2021).

ii.

Major rules to protect consumers

Congress gave the Federal Trade Commission

the power to write substantive rules. The FTC has the

authority to enact both competition and consumer

protection rules. 15 U.S.C. § 46(g); 15 U.S.C. § 57a. See

also Nat’l Petroleum Refiners Ass’n v. FTC, 482 F.2d

672, 693 (D.C. Cir. 1973) (“Section 6(g) plainly

authorizes rule-making and nothing in the statute or

in its legislative history precludes its use for this

purpose.”).

The FTC led the way to regulate cigarettes

nationally. One week after the publication of the

Surgeon General’s landmark 1964 report on the

adverse health effects of smoking, the FTC initiated a

rulemaking to mandate health warnings on cigarette

packages. Unfair or Deceptive Advertising and

Labeling of Cigarettes in Relation to Health Hazards

of Smoking, 29 Fed. Reg. 8324 (July 2, 1964),

withdrawn, 30 Fed. Reg 9485 (July 29, 1965).

Following aggressive tobacco industry lobbying,

Congress enacted legislation that superseded the rule

and established a statutory system of disclosures.

Federal Cigarette Labeling and Advertising Act of

1965, Pub. L. No. 89-82, 79 Stat. 282, codified at 15

U.S.C. §§ 1331–40. Nonetheless, FTC action was

critical in regulating a product now universally

recognized to be harmful to human health.

The FTC’s Funeral Rule stands as one of the

agency’s most successful and enduring uses of its

consumer protection authority under Section 18 of the

FTC Act. Finalized in 1984, the rule was the product

of nearly a decade of investigation that exposed

widespread deceptive and coercive practices in the

funeral industry. The FTC found a lack of price

transparency, coercive bundling of products and

services, and misrepresentations about legal

requirements (e.g., falsely claiming embalming was

mandatory). Funeral Industry Practices Trade

Regulation Rule, 59 Fed. Reg. 1592, 611 (Jan. 11,

1994) (codified at 16 C.F.R. § 453). This rule

exemplifies effective prophylactic regulation in a

market in which consumers are especially vulnerable

to exploitative and deceptive marketing practices.

The Credit Practices Rule curtailed predatory

and deceptive lending practices in consumer credit

markets. Trade Regulation Rule; Credit Practices, 49

Fed. Reg. 7740 (Mar. 1, 1984), petition denied by Am

Fin. Servs. Ass’n v. FTC, 767 F.2d 957 (D.C. Cir. 1985).

Enacted after extensive public hearings and industry

study, the rule was designed to standardize fair credit

terms, eliminate hidden traps in consumer contracts,

and reduce the use of coercive collection tactics. The

rule prohibits provisions and practices that exploit

consumers’ lack of bargaining power or legal

sophistication. The outlawed terms include wage

assignments, which allow creditors to garnish wages

without a court order, pyramiding of late charges, and

confessions of judge in which consumers waive their

right to contest legal claims in court. 16 C.F.R. § 444.2.

As these examples show, the FTC has been at

the forefront of protecting the American public from

being exploited by unscrupulous actors for more than

a century. This body of experts must be able to

continue to act “independent of executive authority”

and “free to exercise its judgment without the leave or

hindrance” by those with political goals such as the

President and his advisors. Humphrey’s Executor, 295

U.S. at 625. Congress tasked the FTC with

implementing specific laws, and it is vital that it

remain free to continue acting in a bipartisan and

impartial manner.

CONCLUSION

For the reasons stated above, the judgment

should be upheld.

Dated: November 14, 2025

Respectfully submitted,

Jamie Crooks*

FAIRMARK PARTNERS, LLP

400 7th Street NW