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 INDEPENDENT AGENCY BOARD

MEMBERS AND SCHOLARS AS AMICI

CURIAE IN SUPPORT OF RESPONDENTS

JON GREENBAUM

JUSTICE LEGAL

STRATEGIES PLLC

P.O. Box 27015

Washington, DC 20035

CATHERINE M.A. CARROLL

Counsel of Record

BRADLEY GIRARD

PAUL R.Q. WOLFSON

ELENA GOLDSTEIN

SKYE L. PERRYMAN

DEMOCRACY FORWARD

FOUNDATION

P.O. Box 34553

Washington, DC 20043

(202) 448-9090

ccarroll@democracy

forward.org

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................................... ii

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

SUMMARY OF ARGUMENT .................................... 4

ARGUMENT ............................................................... 6

I. REMOVAL PROTECTIONS SAFEGUARD THE

INDEPENDENCE OF AGENCIES THAT OVERSEE

ESSENTIAL PUBLIC INFRASTRUCTURE..................... 7

II. AGENCIES THAT SAFEGUARD THE

STRUCTURAL INTEGRITY OF GOVERNMENT

MUST BE INDEPENDENT AND IMPARTIAL.............. 15

III.REMOVAL PROTECTIONS PROMOTE ECONOMIC

STABILITY AND CONFIDENCE IN THE

MARKETS .............................................................. 27

CONCLUSION ......................................................... 32

TABLE OF AUTHORITIES

Page(s)

CASES

ATF v. FLRA, 464 U.S. 89 (1983) ............................. 25

Buckley v. Valeo, 424 U.S. 1 (1975)........................... 19

CSC v. Nat’l Ass’n of Letter Carriers, AFL-CIO,

413 U.S. 548 (1973) ............................................. 27

DOD v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981)......... 25

Harper v. Bessent, No. 25-cv-1294, 2025 WL

2049207 (D.D.C. July 22, 2025) .......................... 29

Harris v. Bessent, 775 F. Supp. 3d 164 (D.D.C.

2025) .................................................................... 24

Reynolds v. Sims, 377 U.S. 533 (1964) ..................... 16

Seila Law LLC v. CFPB, 591 U.S. 197 (2020) .... 11, 27

Swan v. Clinton, 100 F.3d 973 (D.C. Cir. 1996) ........ 29

Trump v. Wilcox, 145 S. Ct. 1415 (2025) .................... 6

Wabash, St. Louis & Pac. Ry. Co. v. Illinois,

118 U.S. 557 (1886) ............................................... 8

AGENCY CASES

Foster Poultry Farms—Ex Parte Pet. for

Emergency Serv. Ord., Dkt. No. FD, 36609,

2022 WL 18024160 (S.T.B. Dec. 30, 2022) ......... 12

Foster Poultry Farms—Ex Parte Pet. for

Emergency Serv. Ord., Dkt. No. FD, 36609,

2023 WL 2026579 (S.T.B. Feb. 14, 2023) ........... 12

DOCKETED CASES

Brown v. Trump, No. 25-cv-10764 (D.D.C.) ................ 2

iii

Grundmann v. Trump., 25-cv-425 (D.D.C.) ................ 2

Primus v. Trump, No. 25-cv-3521 (D.D.C.) ................ 3

STATUTES

5 U.S.C.

§ 1201 ................................................................... 23

§ 1204(a)(1) .......................................................... 22

§ 2301(b)(9) .......................................................... 21

§ 2302(b) .............................................................. 22

§ 7101 ................................................................... 25

§ 7104(a) .............................................................. 25

§ 7104(b) .............................................................. 25

§ 7104(c) ........................................................... 2, 25

§ 7701(a) .............................................................. 22

§ 20923(a)(1) ........................................................ 17

§ 20923(b)(1) ........................................................ 17

12 U.S.C.

§ 1752a(b)(1) ........................................................ 29

§ 1786 ................................................................... 28

15 U.S.C. § 7 .............................................................. 29

49 U.S.C.

§ 1111 ................................................................... 13

§ 1111(b) .............................................................. 14

§ 1301(a) .............................................................. 10

§ 11123 ........................................................... 12, 12

52 U.S.C.

§ 20508(a) ............................................................ 17

§ 20922 ................................................................. 17

§ 30101 ................................................................. 18

§ 30106(a) ............................................................ 20

Act of Mar. 2, 1889, 25 Stat. 855................................. 9

Civil Service Reform Act of 1978, Pub. L. No.

95-454, 92 Stat. 1111 .................................... 21, 25

Department of Transportation Act, Pub. L. No.

89-670, 80 Stat. 931 (1966) ................................. 13

Help America Vote Act of 2002, Pub. L. No.

107-252, 116 Stat. 1666 ...................................... 16

ICC Termination Act of 1995, Pub. L. No. 10488, tit. II, 109 Stat. 803 ....................................... 10

Independent Safety Board Act of 1974, Pub. L.

No. 93-633, 88 Stat. 2156 (1975) .................. 13, 13

Interstate Commerce Act, Pub. L. No. 49-41,

24 Stat. 379 (1887) ............................................... 9

LEGISLATIVE MATERIALS

116 Cong. Rec. S2417 (Feb 4, 1970) .......................... 28

124 Cong. Rec. H25721 (Aug. 11, 1978) .............. 26, 26

124 Cong. Rec. S27547 (Aug. 24, 1978) .................... 23

S. Rep. No. 95-969 (1978) .............................. 21, 23, 26

Congress.gov, PN70, Michelle A. Schultz for

Surface Transportation Board, 116th

Cong.

(Nov.

19,

2020),

https://perma.cc/G5U2-THWP ............................ 11

Congress.gov, PN2151, Nomination of Robert

E. Primus for Surface Transportation

Board, 116th Cong. (Nov. 19, 2020),

https://perma.cc/C4ET-6BKZ .............................. 11

OTHER AUTHORITIES

Adams, Jr., Charles Francis, Railroads: Their

Origin and Problems (1878).................................. 9

Auerbach, Joseph, The Expansion of ICC

Administrative Law Activities, 16 Transp.

L.J. 92 (1987) ......................................................... 7

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

Independent Agencies in the United States:

Law, Structure, and Politics (2015) ...................... 8

Bureau of Labor Statistics, Databases, Tables

& Calculators by Subject, https://perma.

cc/2PRF-SB4H (last visited Nov. 13, 2025) ........ 20

Civil Service Commission, Office of Public

Affairs, Biography of an Ideal: A History of

the Federal Civil Service 16 (rev. ed. 1974) ........ 24

Dempsey, Paul Stephen, The Rise and Fall of

the Interstate Commerce Commission: The

Tortuous Path From Regulation to

Deregulation of America's Infrastructure,

95 Marq. L. Rev. 1151 (2012)................................ 7

Federal Aviation Administration, FAA

Statement on NTSB Recommendations for

DCA (Mar. 14, 2025), https://perma.

cc/R6KJ-5TYW .................................................... 15

Federal Election Commission, Mission and

History, https://perma.cc/8Q4E-CHE9 (last

visited Nov. 13, 2025) .......................................... 19

Federal Election Commission, Selected Cases

in which the Civil Penalties are $50,000 or

Greater Made Public Between 1980 and

Present (updated June 2025), https://

perma.cc/D7XU-67FT.......................................... 19

Gadinis, Stavros, From Independence to

Politics in Financial Regulation, 101 Cal.

L. Rev. 327 (2013) ............................................... 27

Garrett, R. Sam, Cong. Rsch. Serv., R45160,

Federal Election Commission: Membership and Policymaking Quorum, In Brief

(2025) ................................................................... 18

Goldman, Ben, Cong. Rsch. Serv., R47013, The

Surface Transportation Board (STB):

Background and Current Issues (2025) ........ 10, 11

Government Accountability Office, GAO-19432, Whistleblowers: Key Practices for

Congress to Consider When Receiving and

Referring Information 1 (2019)........................... 24

Hogue, Henry B., Cong. Rsch. Serv., R47897,

Abolishing a Federal Agency: The

Interstate Commerce Commission (2024) ..... 7, 8, 9

Kessler, Glenn, Trump Launched Air

Controller Diversity Program That He

Now Decries, Wash. Post (Jan. 30, 2025),

https://perma.cc/693L-JZ5R ................................ 14

Merit Systems Protection Board, How to File

an Appeal, https://perma.cc/DX79-LNKA

(last visited Nov. 13, 2025) ................................. 22

National Credit Union Administration,

Central

Liquidity

Facility,

https://perma.cc/W3F4-PDGT (last visited

Nov. 13, 2025) ...................................................... 28

National Credit Union Administration,

Mission

and

Values,

https://perma.cc/5SFN-3ZAP (last visited

Nov. 13, 2025) ...................................................... 28

vii

National Transportation Safety Board, NTSB

Makes Urgent Recommendations on

Helicopter Traffic Near Reagan National

Airport

(Mar.

11,

2025),

https://perma.cc/9WUX-7GZK ............................ 15

Norris, Pippa, Why Electoral Integrity Matters

(2014) ................................................................... 16

White, Mary Jo, Chair, Securities & Exchange

Commission,

The

Importance

Independence, 14th Annual A.A. Sommer,

Jr. Corporate Securities and Financial

Law Lecture at Fordham Law School (Oct.

3, 2013), https://perma.cc/RU8C-L6MG ............. 30

Zucker, David K., The Origin and Development

of the Interstate Commerce Commission

and Its Impact on the Origination of

Independent Regulatory Commissions in

the American Legal System: A Historical

Perspective (2016) .................................................. 9

INTEREST OF AMICI CURIAE1

Amici are removed board members from

independent federal agencies and scholars whose

work includes the study of independent agencies and

the separation of powers between the President and

Congress. Amici advance the view that there are

federal agencies whose responsibility for protecting

the safety and stability of the national infrastructure

or ensuring the structural integrity of government

necessitates their independence. Significant negative

consequences would likely follow if these agencies

were to lose their independence and their work were

to become politicized.

Samuel Bagenstos, the Frank G. Millard

Professor of Law at the University of Michigan and

the Arlene Susan Kohn Professor of Social Policy at

the University of Michigan Gerald R. Ford School of

Public Policy, specializes in civil rights, labor and

employment law, health law, and governance. He held

several positions in the federal government, including

as general counsel to the Office of Management and

Budget, where his responsibilities included advising

the entire Executive Branch on issues of

administrative law.

Alvin Brown was nominated by President Biden

to serve as a member of the National Transportation

Safety Board and was unanimously confirmed by

voice vote by the Senate on March 8, 2024, to a term

expiring December 31, 2026. Mr. Brown served as

Vice Chair from December 23, 2024 to May 5, 2025.

1 No counsel for a party authored this brief in whole or in

part, and no entity or person, other than amici curiae and their

counsel, made a monetary contribution intended to fund the

preparation or submission of this brief.

On May 5, 2025, Mr. Brown was removed from the

Board by President Trump in a one-sentence email

that did not offer a reason. Mr. Brown has filed suit

seeking to have his position restored. Brown v.

Trump, No. 25-cv-10764 (D.D.C.)

John Dearborn is an Assistant Professor of

Political Science at Vanderbilt University. His

research and teaching interests include the

Presidency,

Congress,

American

Political

Development, American Political Thought, and

Archival Methods. He recently co-authored

Congressional Expectations of Presidential SelfRestraint, which explores how Congress has designed

laws reliant on an assumption of presidential selfconstraint.

Susan Tsui Grundmann became a Member of the

Federal Labor Relations Authority on May 12, 2022.

She was appointed by President Joseph R. Biden and

confirmed by the Senate to a term set to expire on

July 1, 2025, although under the governing statute, 5

U.S.C. § 7104(c), she is permitted to continue serving

until either her successor takes office or the last day

of the Congress beginning after the original expiration

date, which in her case would fall in January 2029.

She served as Chairman of the Authority from

January 3, 2023 to February 10, 2025. On February

10, 2025, she was removed from the Authority by

President Trump in a two-sentence email that

provided no reason. She has filed suit challenging her

removal, Grundmann v. Trump. 25-cv-425 (D.D.C.).

Ms. Grundmann also served as a member of the Merit

Systems Protection Board from November 12, 2009 to

January 7, 2017 and served as Chairman for her

entire tenure.

Justin Levitt is a nationally recognized scholar of

constitutional law, administrative law, and the law of

democracy at LMU Loyola Law School. He has been

invited to testify before federal and state legislative

and administrative bodies and courts. He served as

the White House’s inaugural Senior Policy Advisor for

Democracy and Voting Rights and before that helped

lead the work of the DOJ’s Civil Rights Division on

voting rights and employment discrimination.

Donald Moynihan is the J. Ira and Nicki Harris

Family Professor at the Gerald R. Ford School of

Public Policy at the University of Michigan. His

research seeks to improve how government works by

studying the administrative burdens people

encounter

their

interactions

with

the

government. He co-directs the Better Government

Lab, which looks for technology and other types of

interventions to help government improve access to

the social safety net.

Robert Primus was nominated by President

Trump to fill a vacancy on the Surface Transportation

Board. The Senate confirmed Mr. Primus, and he was

sworn in on January 7, 2021. He served as Vice

Chairman from February 2021 to February 2022. Mr.

Primus was then nominated by President Biden for a

full five-year Board term and was confirmed by the

Senate to a term expiring on December 31, 2027. Mr.

Primus served as Chairman of the Board from May

2024 until January 2025. On August 27, 2025,

President Trump removed Mr. Primus from the Board

in a two-sentence email that did not offer a reason.

Mr. Primus has challenged his removal in a lawsuit.

Primus v. Trump, No. 25-cv-3521 (D.D.C.).

William G. Resh is professor and chair of the

Department of Public Management and Policy

(PMAP) at Georgia State University’s Andrew Young

School of Policy Studies. A nationally recognized

scholar of executive politics, public personnel policy,

civil service systems, and the U.S. presidency, his

award-winning book, Rethinking the Administrative

Presidency, received top honors from the American

Political Science Association and the American

Society for Public Administration.

Ciara Torres-Spelliscy is a professor at Stetson

University Law School teaching courses in Election

Law, the First Amendment, Corporate Governance,

Business Entities, and Constitutional Law. She has

testified before Congress, and state and local

legislative bodies as an expert on campaign finance

reform. She researches and speaks publicly on

campaign finance law as well as judicial selection.

SUMMARY OF ARGUMENT

Congress created the first modern independent

agency out of the national imperative to stabilize the

railroad industry. The industry was a focal point of

the American economy and infrastructure at the end

of the nineteenth century but was subject to

instability and dysfunction. A body was needed to

resolve disputes among railroads, shippers, and

customers so that the nation’s primary means of

interstate transportation would operate effectively.

Impartiality and independence were essential to this

function because a body vulnerable to political

pressure would undermine consistency in decision

making and defeat the agency’s purpose of providing

stability to the railroad industry. In the late 1880s,

Congress accordingly devised a structure that would

enable the body, the Interstate Commerce

Commission (ICC), to be independent and impartial:

a multi-member, bipartisan independent commission

whose members were appointed by the President and

confirmed by the Senate and could be removed during

their term by the President only for inefficiency,

neglect, or malfeasance in office.

In subsequent years, Congress has created dozens

of independent agencies with similar structures and

removal protections. Among them are agencies that,

like the ICC, serve vital functions of protecting our

public and economic infrastructure and our system of

government. These agencies include those that

oversee public infrastructure and utilities, such as the

Surface Transportation Board (STB), which is the

successor agency to the ICC, and the National

Transportation Safety Board (NTSB), which

investigates aircraft and other major transportation

accidents and makes recommendations to prevent

similar accidents in the future. They include agencies

that protect the structural integrity of government, by

overseeing aspects of federal elections (such as the

Election Assistance Commission (EAC) and Federal

Election Commission (FEC)) and adjudicating

disputes concerning the integrity of the civil service

(such as the Merit Systems Protection Board (MSPB)

and the Federal Labor Relations Authority (FLRA)).

And they include independent agencies like the

National Credit Union Administration (NCUA) and

Securities and Exchange Commission (SEC) that, like

the Federal Reserve, play critical roles in stabilizing

the economy.

While each of the aforementioned agencies has a

unique history and function, they share in common

the critical role that independence plays in ensuring

the agency can fulfill its responsibility to protect the

nation’s physical and economic infrastructure and the

structural integrity of government. An agency

charged with investigating and preventing airplane

accidents, for instance, requires consistency of

mission, stability in leadership, and insulation from

pressures that would compromise its priorities.

Significant negative consequences would likely follow

if such agencies were to lose their independence and

their work were to become politicized. Any

constitutional analysis of the validity of an officer’s

for-cause removal protections should therefore

consider not only the agency’s structure and history,

see, e.g., Trump v. Wilcox, 145 S. Ct. 1415, 1415 (2025),

but also the agency’s role in protecting the safety and

stability of the national infrastructure and its need for

independence to effectively discharge that function.

As shown below, independence from political pressure

will in many cases be critical to an agency’s ability to

carry out its mission, and the Court should not

endorse any rule that would fail to take account of an

agency’s responsibility for protecting public safety or

critical infrastructure. Cf. U.S. Br. 13.

ARGUMENT

When Congress created the ICC to perform the

nationally critical responsibility of regulating

railroads—the industry perhaps most essential to the

nation’s infrastructure—it recognized that the agency

could not perform its function of stabilizing the

railroad industry unless it was impartial and

independent. Congress has followed that model in

structuring other agencies that also play vital roles in

safeguarding public safety and infrastructure in this

country, the structural integrity of government, and

the nation’s economic infrastructure. These agencies’

independence from excessive political influence is

critical to their ability to discharge these functions.

Any constitutional analysis of the validity of an

agency’s removal protections should consider the

agency’s function and the harms to public safety and

infrastructure that would result from politicization.

REMOVAL PROTECTIONS SAFEGUARD THE

INDEPENDENCE OF AGENCIES THAT OVERSEE

ESSENTIAL PUBLIC INFRASTRUCTURE

A. The ICC’s creation exemplifies the need for

independent, nonpolitical bodies to protect and

stabilize essential national infrastructure. The ICC

was established to address a longstanding and

substantial public need for national regulation of the

railroad industry in the late nineteenth century. This

was needed for two reasons. First, the railroad system

was central to the nation’s livelihood: “The railroad

dominated [the U.S.] economy and society in the 19th

century. The domination existed from every

standpoint, capitalization, employment, community

impact or entrepreneurial opportunity. There was no

force, industrial or religious which matched the

societal impact of the railroad after the first third of

the 19th century.” Joseph Auerbach, The Expansion

of ICC Administrative Law Activities, 16 Transp. L.J.

92, 92 (1987).

Second, the railroad industry was unstable and

riddled with problems stemming from uneven

competition, labor issues, and political corruption.

Railroads, particularly in rural areas, had monopolies

on certain routes and could charge exorbitant rates to

shippers and agricultural and other businesses. Paul

Stephen Dempsey, The Rise and Fall of the Interstate

Commerce Commission: The Tortuous Path From

Regulation

Deregulation

America’s

Infrastructure, 95 Marq. L. Rev. 1151, 1155-56 (2012).

Conversely, where there was intense competition

among railroads, shippers engaged in destabilizing

rate wars. Henry B. Hogue, Cong. Rsch. Serv.,

R47897, Abolishing a Federal Agency: The Interstate

Commerce Commission 2 (2024). The industry also

suffered from political corruption, bankruptcy,

consumer revolt, and labor unrest. Dempsey, Rise and

Fall, 95 Marq. L. Rev. at 1158-60. By 1886, 30 of the

38 States had adopted some form of railroad

regulation, which was insufficient due to the

interstate nature of railroads and also created

inconsistent piecemeal regulation. Hogue, Abolishing

a Federal Agency 2; Marshall J. Breger & Gary J.

Edles, Independent Agencies in the United States:

Law, Structure, and Politics 28 (2015). This Court’s

decision that States could not regulate railroads

engaged in interstate commerce contributed to the

need for centralized regulation. Wabash, St. Louis &

Pac. Ry. Co. v. Illinois, 118 U.S. 557 (1886).

The central importance of the railroad industry

and these myriad problems, especially instability, led

to widespread recognition that federal regulation of

the industry was essential to ensure that interstate

commerce was not imperiled. But Congress faced

challenges in finding the right solution: “[b]etween

1868 and 1886, more than 150 [railroad regulation]

bills were introduced in Congress.” Breger & Edles,

Independent Agencies in the United States 28. Among

other challenges, the House and the Senate disagreed

for years on whether the legislation should provide for

judicial enforcement or an administrative oversight

commission. Id.

In the eventual compromise, the Interstate

Commerce Act (ICA), Congress adopted the

Commission structure but created the Commission as

a quasi-judicial body. Id. at 29-30; Hogue, Abolishing

a Federal Agency 4. Additionally, Congress structured

the Commission as a bipartisan body to accomplish a

primary objective of impartiality. Breger & Edles,

Independent Agencies in the United States 30. The

Commission was composed of five members,

nominated by the President and confirmed by the

Senate, appointed to five-year terms with no more

than three Commissioners from one party. ICA, Pub.

L. No. 49-41, § 11, 24 Stat. 379, 383 (1887).

Commission

independence

from

political

interference in its operations was also a key

consideration. Some members of Congress were

concerned about “conferring direct authority on the

president to regulate what was the most significant

aspect of the American economy.” Breger & Edles,

Independent Agencies in the United States 30.

Additionally, many recognized that state railroad

commissions had been plagued with politically

motivated removals, which undermined their

effectiveness because replacement commissioners

were often seen as incompetent. Charles Francis

Adams, Jr., Railroads: Their Origin and Problems 134

(1878). So when Congress passed the ICA, it included

a provision that “[t]he President could only remove

Commissioners

for

inefficiency,

neglect,

malfeasance in office.” ICA, § 11, 24 Stat. at 383. Two

years later, Congress moved the ICC out of the

Department of Interior and recast it as a standalone,

independent agency. Act of Mar. 2, 1889, § 7, 25 Stat.

855, 861. This change was made in part to further

protect the ICC from undue political interference that

could undermine its mission. Breger & Edles,

Independent Agencies in the United States 32; Hogue,

Abolishing a Federal Agency 4-5; David K. Zucker,

The Origin and Development of the Interstate

Commerce Commission and Its Impact on the

Origination of Independent Regulatory Commissions

in the American Legal System: A Historical

Perspective 139 (2016).

B. Congress has followed the same model in

structuring other agencies with responsibility for

regulating essential public infrastructure, recognizing

the necessity of independence to their functioning.

Though there may be not a single private industry

that today plays as a dominant role in the nation’s

public infrastructure as the railroads in the 1800s,

there are industries that are vital and essential to the

public infrastructure and require oversight that

ensures stability and advances public safety. Central

to these agencies carrying out these critical functions

is their impartiality and their independence from

political interference.

One example is the Surface Transportation Board

(STB). The ICC Termination Act of 1995 established

the STB as the successor to the ICC. ICC Termination

Act of 1995, Pub. L. No. 104-88, tit. II, 109 Stat. 803,

932. The STB’s primary role is to adjudicate matters

involving railroads, but it also has some regulatory

power over motor carrier, water carrier, and pipeline

interstate commerce. Ben Goldman, Cong. Rsch.

Serv., R47013, The Surface Transportation Board

(STB): Background and Current Issues 1 (2025). The

STB is structured to ensure independence. The STB is

an “independent establishment of the United States

Government,” 49 U.S.C. § 1301(a), whose five

members are appointed by the President and

confirmed by the Senate and may be removed by the

President only for inefficiency, neglect or malfeasance

in office. Id. § 1301(b). Congress also sought to protect

the STB from political interference in its operations

by requiring that no more than three of its five

members come from the same political party, at least

three members have “professional standing and

demonstrated knowledge” of issues of transportation

or regulation, and at least two have experience in the

private sector. Id.2

Similar to the ICC, an impartial STB ensures that

freight rail—still a backbone of the U.S. economy—is

regulated fairly, transparently, and in the public

interest. For example, the STB regulates railroads

that often operate as monopolies in certain regions,

especially where shippers have no alternative

carriers. The STB has authority to cap rates when a

railroad is “market dominant.” Goldman, The Surface

Transportation Board 4. If politicized, this power

could be used to punish or reward specific industries

or regions, or STB decisions could unfairly favor

powerful railroad companies or politically connected

shippers. This could ultimately harm manufacturers

and consumers by increasing, if not making

prohibitive, the cost of shipping certain goods.

Allowing unfettered presidential removal would undermine

one of the core structural features—bipartisanship—of

numerous “traditional” multimember independent agency

boards. This feature results in a “‘diverse set of viewpoints and

experiences.’” Seila Law LLC v. CFPB, 591 U.S. 197, 205-06

(2020). The bipartisan structure has often resulted in Presidents

nominating, and the Senate confirming, a slate of both

Republican and Democratic nominees, including President

Trump in his first term. For example, Amicus Robert Primus, a

Democrat, was originally confirmed by the Senate to the STB on

November 19, 2020, see Congress.gov, PN2151, Nomination of

Robert E. Primus for Surface Transportation Board, 116th Cong.,

https://perma.cc/C4ET-6BKZ—the same day that the Senate

confirmed Michele Schultz, a Republican, to the STB, see

Congress.gov, PN70, Michelle A. Schultz for Surface

Transportation Board, 116th Cong., https://perma.cc/G5U2THWP. President Trump removed Mr. Primus earlier this year

without offering a reason.

Additionally, under certain circumstances, the

STB can intervene to prioritize rail service to a

particular customer on an emergency basis when

necessary to serve the public. 49 U.S.C. § 11123. In

2022, for example, the STB invoked that authority to

issue an emergency order requiring Union Pacific to

prioritize the delivery of corn to Foster Farms, a major

contributor to the nation’s food supply that was facing

the potential starvation of millions of chickens. Foster

Poultry Farms—Ex Parte Pet. for Emergency Serv.

Ord., Dkt. No. FD 36609, 2022 WL 18024160, at *1-3

(S.T.B. Dec. 30, 2022). In response to Foster Farms’s

concern that there had been recurring problems with

Union Pacific’s service, the Board later required the

railroad to provide weekly status reports for 180 days.

Foster Poultry Farms—Ex Parte Pet. for Emergency

Serv. Ord., Dkt. No. FD 36609, 2023 WL 2026579, at

*1-4 (S.T.B. Feb. 14, 2023). The Foster Farms cases

exemplify the essential public function the STB can

play by using its emergency powers to protect the

nation’s infrastructure and food supply. But it is also

easy to see how a STB subject to political interference

could misuse its emergency powers. For example, if

the STB was subject to political interference, Board

members could invoke § 11123 to prioritize the

shipping of goods of the President’s supporters even

when no emergency justified it.

C. The National Transportation Safety Board

(NTSB) provides another example of an independent

agency that serves an essential function related to

public safety and infrastructure that Congress

determined must be independent and not influenced

by political considerations. The mission of the NTSB

is “to promote transportation safety by conducting

independent accident investigations and by

formulating safety improvement recommendations.”

Independent Safety Board of Act of 1974, Pub. L. No.

93-633, § 302(1), 88 Stat. 2156, 2166-67 (1975).

The NTSB’s independence from political

interference is essential to its function—and to the

public safety—because its work includes investigating

other

executive

agencies

and

making

recommendations regarding them:

Proper conduct of the responsibilities

assigned to this Board requires vigorous

investigation

accidents

involving

transportation modes regulated by other

agencies of Government; demands continual

review, appraisal, and assessment of the

operating practices and regulations of all such

agencies; and calls for the making of

conclusions and recommendations that may

be critical of or adverse to any such agency or

its officials. No Federal agency can properly

perform such functions unless it is totally

separate and independent from any other

department, bureau, commission, or agency of

the United States.

Id. § 302(2).

To enable the NTSB to function as an

independent, nonpolitical body of experts, Congress

structured it like the STB (and its predecessor the

ICC) as an independent bipartisan agency, whose

members are presidentially appointed and Senate

confirmed and can only be removed by the President

for inefficiency, neglect, or malfeasance in office. 49

U.S.C. § 1111.3 Additionally, to reinforce the Board’s

3 When the NTSB was first created in 1966, it was housed

within the Department of Transportation, though Congress

made clear that the NTSB was to operate “independent of the

status as a body of experts, Congress introduced a

technical requirement: “At least 3 members shall be

appointed on the basis of technical qualification,

professional standing, and demonstrated knowledge

in accident reconstruction, safety engineering, human

factors, transportation safety, or transportation

regulation.” 49 U.S.C. § 1111(b).

A tragic example from this year illustrates the

important need for the NTSB to be able to investigate

and make recommendations independent of the

President

and

other

politically

controlled

departments and agencies. On January 29, 2025, a

U.S. Army helicopter collided with a commercial

passenger plane over the Potomac River near Ronald

Reagan Washington National Airport (DCA), killing

67 people. The next day, the President suggested that

diversity, equity, and inclusion initiatives for air

traffic controllers had contributed to the accident. The

NTSB performed its responsibility by conducting an

independent investigation. Glenn Kessler, Trump

Launched Air Controller Diversity Program That He

Now Decries, Wash. Post (Jan. 30, 2025),

https://perma.cc/693L-JZ5R. About six weeks after

the collision, after examining the wreckage, cockpit

voice recordings, and other information, the NTSB

issued its preliminary report along with an urgent

recommendation

that

the

Federal

Aviation

Secretary of Transportation and the other offices and officers of

the Department.” Department of Transportation Act, Pub. L. No.

89-670, § 5(f), 80 Stat. 931, 936 (1966). Less than a decade later,

in the Independent Safety Board Act of 1974, Congress

recognized that the NTSB’s essential functions required total

independence and established the NTSB as a completely

independent agency outside of the Department of

Transportation. Independent Safety Board Act of 1974, Pub. L.

No. 93-633, §§ 302(1), 303(a), 88 Stat. 2156, 2166-67 (1975).

Administration (FAA) prohibit helicopter operations

near DCA when certain runways are in use. See

NTSB, NTSB Makes Urgent Recommendations on

Helicopter Traffic Near Reagan National Airport

(Mar. 11, 2025), https://perma.cc/9WUX-7GZK. Three

days later, the FAA announced that it was “taking a

series of steps to improve safety around Ronald

Reagan Washington National Airport (DCA) that

follows the NTSB’s recommendations.” FAA, FAA

Statement on NTSB Recommendations for DCA (Mar.

14, 2025), https://perma.cc/R6KJ-5TYW.

By operating independently from political

speculation about the causes of the accident, the

NTSB was able to investigate and make

recommendations that may well prevent future

collisions and thus save lives. Such work would be

compromised without the NTSB’s independence. In

the case of the DCA accident, the NTSB was able to

do its work on an expedited basis free of the politics

surrounding the crash. Furthermore, the NTSB could

be critical of an executive agency that had not been

sufficiently protective of public safety. If NTSB

members were subject to removal at will, they might

be less willing to be critical, and public safety could

suffer as a result.

II. AGENCIES THAT SAFEGUARD THE STRUCTURAL

INTEGRITY OF GOVERNMENT MUST BE

INDEPENDENT AND IMPARTIAL

Independence similarly serves the missions of

several agencies that play vital roles in protecting the

structural integrity of government.

A. First, in regard to elections, this Court has long

recognized that “the right of suffrage is a fundamental

matter in a free and democratic society” and that “the

right to exercise the franchise in a free and

unimpaired manner is preservative of other basic civil

and political rights.” Reynolds v. Sims, 377 U.S. 533,

561-62 (1964). For elections to be free and fair, they

must be administered impartially. Unfair, corrupt,

and flawed election administration “undermine[s]

broader feelings of political legitimacy, including

confidence in elected officials and institutions,

satisfaction with the performance of democracy and

the record of human rights, and voluntary legal

compliance.” Pippa Norris, Why Electoral Integrity

Matters 113-14 (2014).

Though Congress has generally left the bulk of

election administration to the States, it has created

two independent agencies to help ensure the integrity

of federal elections—the United States Election

Assistance Commission (EAC) and the Federal

Election Commission (FEC). Congress has carefully

constructed these agencies to prevent improper

politicization of elections by the federal government,

giving them only limited but important authority and

providing that they can act only upon a bipartisan

majority vote of commissioners.

Given the tremendous cost of political interference

in agencies overseeing elections, Congress deemed it

absolutely essential that these agencies be protected

from that possibility. Indeed, without such

assurances, it is inconceivable that Congress would

have established these agencies.

After the closely contested 2000 presidential

election exposed election administration problems,

Congress enacted the Help America Vote Act of 2002

(HAVA), Pub. L. No. 107-252, 116 Stat. 1666, and

created the EAC to administer some components of

HAVA. The EAC’s duties include adopting voluntary

voting system guidelines; testing, certification,

decertification, and recertification of voting system

hardware and software; conducting studies and

carrying out other activities to promote the effective

administration of federal elections; developing a mail

voter registration application form for elections for

federal office; managing and distributing federal

grants to states and local jurisdictions that

administer elections; making voting accessible for

disabled Americans; and providing a report to

Congress after each two-year federal election cycle

assessing the impact of the National Voter

Registration Act of 1993 on elections for federal office

that includes recommendations for improvements. 52

U.S.C. §§ 20508(a), 20922.

Given these functions, Congress built in features

to ensure the EAC’s independence and impartiality.

Congress established the EAC “as an independent

entity.” Id. § 20921. Its four members are “appointed

by the President, by and with the advice and consent

of the Senate” to four-year terms. Id. §§ 20923(a)(1),

20923(b)(1). Each member of the Commission must

have experience with or expertise in election

administration or the study of elections. Id. § 20923.

Congress also ensured that no political party could

dominate the EAC. Not more than two members can

be affiliated with the same political party. Id. §

20922(b)-(c). The Majority Leader of the Senate, the

Speaker of the House of Representatives, the Minority

Leader of the Senate, and the Minority Leader of the

House

Representatives

each

submit

recommendation to the President for one position on

the EAC “affiliated with the political party of the

Member of Congress involved.” Id. § 20923(a)(2).

Bipartisan decision making is guaranteed by the

requirement that “[a]ny action which the Commission

is authorized to carry out under this chapter may be

carried out only with the approval of at least three of

its members.” Id. § 20928.

Though the EAC’s duties are limited, it is not

difficult to envision how a politicized, nonindependent EAC could undermine the fairness and

impartiality of elections. For example, a politicized

EAC could certify or decertify voting system hardware

and software not based on the quality and security of

those systems but based on the political contributions

of system vendors. Similarly, a presidentially

controlled or otherwise politicized EAC could vote to

add unnecessary and draconian requirements to the

federal mail voter registration application form. But

because of the EAC’s structure, any decision by the

EAC would be independent and bipartisan, and thus

free of the reality or perception that it was adopted to

bolster the electoral prospects of one political party.

The FEC is similarly independent and

bipartisan—for good reason, given the agency’s

functions. “Congress created the FEC in 1974, after

controversial

fundraising

during

presidential

campaigns in the 1960s and the early 1970s

Watergate scandal. The FEC is responsible for

administering federal campaign finance law and for

civil enforcement of the Federal Election Campaign

Act (FECA). “The FEC also discloses campaign

finance data to the public, conducts compliance

training, and administers public financing for

participating presidential campaigns.” R. Sam

Garrett, Cong. Rsch. Serv., R45160, Federal Election

Commission: Membership and Policymaking Quorum,

In Brief 1 (2025); see also 52 U.S.C. §§ 30101-30146.

The FEC describes itself as “the independent

regulatory agency charged with administering and

enforcing the federal campaign finance law” and

states that its mission is “[t]o protect the integrity of

the federal campaign finance process by providing

transparency and fairly enforcing and administering

federal campaign finance laws.” FEC, Mission and

History, https://perma.cc/8Q4E-CHE9 (last visited

Nov. 13, 2025).

The FEC’s civil enforcement power by itself

provides an important reason for agency

independence. On dozens of occasions since 1980, the

FEC has imposed civil penalties of six figures or more,

with the largest reaching $3.8 million. FEC, Selected

Cases in which the Civil Penalties are $50,000 or

Greater Made Public Between 1980 and Present

(updated June 2025), https://perma.cc/D7XU-67FT. A

non-independent, politically controlled FEC could

easily be weaponized to pursue such penalties against

the

political

opponents

presidential

administration or similarly could shield members or

supporters of a presidential administration from

investigation. Such a commission would threaten

election integrity, sow public distrust in the election

system, and lead to democratic decay. As this Court

observed in Buckley v. Valeo, 424 U.S. 1, 134 (1975),

“one c[ould] not dispute … as a practical matter” that

presidential control of the FEC would be concerning

because the FEC’s “administration of the [Federal

Election Campaign] Act would undoubtedly have a

bearing on any incumbent President’s campaign for

reelection.” Far more concerning would be

presidential interference with FEC decision making.

Cognizant of this concern, Congress structured

the FEC to make sure it acts in a bipartisan manner.

The six members of the FEC are appointed by the

President and confirmed by the Senate for six-year

terms, and no more than three members may be from

the same political party. 52 U.S.C. § 30106(a). Certain

Commission actions require the vote of four

members—bipartisan support—including initiating,

defending, and appealing civil actions, rendering

advisory

opinions,

rulemaking,

conducting

investigations and hearings, encouraging voluntary

compliance, and reporting apparent violations to law

enforcement authorities. Id. §§ 30106(c), 30107(a).

It would harm American democracy to have

agencies that are not independent and bipartisan

overseeing federal elections. Improperly politicized

federal election agencies would have the opportunity

to manipulate the process nationally in favor of

certain candidates and parties and against others.

This would create the perception, if not the reality,

that elections are not free and fair. This is why

Congress made the judgment that the agencies that

oversee federal elections must be bipartisan and

independent.

B. Relatedly, independence plays a critical role for

agencies that promote the integrity of the merit-based

civil service. The federal government is the nation’s

largest employer, employing close to three million

people. BLS, Databases, Tables & Calculators by

Subject, https://perma.cc/2PRF-SB4H (last visited

Nov. 13, 2025). The federal workforce serves the

American public in innumerable ways, including by

protecting public health and safety, safeguarding

national security and law enforcement, administering

benefits and social programs, responding to

emergencies and disasters, and maintaining

infrastructure and scientific advancement. Merit

principles for governmental service, and protection of

those principles, ensure that the federal government

effectively serves the American public. Conversely,

patronage or unfair treatment and poor working

conditions for federal employees could have

significant adverse consequences to the American

public including poor service delivery, delayed

emergency responses, and compromises to public

safety.

In the 1970s, widespread recognition of the need

for reforms to the federal civil service led Congress to

enact the Civil Service Reform Act of 1978 (CSRA),

Pub. L. No. 95-454, 92 Stat. 1111. Congress explained

that reforms were necessary to protect the public

good: “The public has a right to an efficient and

effective Government, which is responsive to their

needs as perceived by elected officials. At the same

time, the public has a right to a Government which is

impartially administered.” S. Rep. No. 95-969, at 4

(1978).

In the CSRA, Congress accordingly set forth a set

of nine merit system principles, including that

recruitment and advancement in federal employment

should be open and fair and based on ability,

knowledge, and skills; employees and applicants for

employment should be treated fairly and equitably

“without regard to political affiliation, race, color,

religion, national origin, sex, marital status, age, or

handicapping condition, and with proper regard for

their privacy and constitutional rights”; “[e]mployees

should be … protected against arbitrary action,

personal favoritism, or coercion for partisan political

purposes”; and “employees shall be protected …

against reprisal for the lawful disclosure of

information which the employees reasonably believe

evidences,” “violation[s] of any law, rule or

regulation,” “gross waste of funds, an abuse of

authority, or … substantial and specific danger[s] to

public health or safety.” 5 U.S.C. § 2301(b)(9). These

principles and others are reflected in the prohibited

personnel principles set forth at § 2302(b).

To enforce these principles, the CSRA established

two

independent,

multimember

adjudicatory

agencies: the Merit Systems Protection Board

(MSPB), charged with resolving disputes between

federal employers and employees, and the Federal

Labor Relations Authority (FLRA), responsible for

resolving federal labor-management disputes.

Congress structured these agencies to be independent

and impartial, which was particularly significant

given that the executive branch serves as the

employer/management party in disputes before both

agencies. Absent independence and impartiality, the

agencies’ effectiveness in adhering to merit system

principles would be undermined, to the detriment of

the public good.

The MSPB’s history illustrates that risk. The

MSPB’s primary responsibility is to adjudicate

appeals by federal employees against agency

employment actions alleged to be prohibited

practices—including, and of particular importance,

improper partisan and political interference in federal

employment. Id. §§ 1204(a)(1), 7701(a); see also

MSPB, How to File an Appeal, https://perma.cc/DX79LNKA (last visited Nov. 13, 2025) (“One of the MSPB’s

primary statutory functions is to protect Federal

merit systems against partisan political and other

prohibited personnel practices by adjudicating

employee appeals over which the Board has been

given jurisdiction.”).

Prior to the CSRA, agency employment actions

had been adjudicated by the Civil Service Commission

(CSC). “[I]n studying the merit abuses which were

found to be prevalent in past administrations” under

the CSC, Congress concluded that “the current Civil

Service Commission was not adequately carrying out

its role as protector of the merit system.” 124 Cong.

Rec. S27547 (Aug. 24, 1978) (statement of Sen. Jim

Sasser).

Because of the MSPB’s adjudicatory role,

Congress created it as an independent, impartial, and

bipartisan agency. The MSPB consists of three

members, appointed by the President and confirmed

by the Senate, to six-year staggered terms. 5 U.S.C. §

1201. The members of the Board shall be individuals

who, by demonstrated ability, background, training,

or experience are especially qualified to carry out the

functions of the Board.” Id. Not more than two

members can be from the same political party and the

President can remove a member “only for inefficiency,

neglect of duty, or malfeasance in office.” Id. §§ 1201,

1202(d). The accompanying Senate report explained

how the structure was designed to ensure the Board’s

independence and why independence was important:

“As a result of this structure, the Board should be

insulated from the kind of political pressures that

have led to violations of merit principles in the past.

[T]he Board … will exercise statutory responsibilities

independent of any Presidential directives.” S. Rep.

No. 95-969, at 7. Moreover, the Report endorsed a

comment by the Executive Director of the President’s

Personnel Management Study that called an

“independent and strong Merit Board ‘the

cornerstone’ of civil service reform.” Id.

Discarding the principles of independence and

impartiality would gravely undermine the MSPB and

harm the public good. For example, the MSPB

adjudicates

whistleblower

appeal

cases.

Whistleblowing serves the public good by exposing

misconduct, protecting taxpayer dollars, and

safeguarding public health and safety. Id. at 30; GAO,

GAO-19-432, Whistleblowers: Key Practices for

Congress to Consider When Receiving and Referring

Information 1 (2019). If the Board is not insulated

from political pressures, whistleblowers would likely

be discouraged from coming forward. The MSPB also

adjudicates claims alleging politically motivated

employment decisions. A politically compromised

MSPB could effectively result in the return of a

political patronage system of federal employment,

which was characterized by “[n]ot only incompetence,

but also graft, corruption and outright theft.” CSC,

Off. of Pub. Affs., Biography of an Ideal: A History of

the Federal Civil Service 16 (rev. ed. 1974). More

generally, an adjudicatory process where the

Executive Branch serves as both a party and the

adjudicator will likely not be—and will certainly not

be perceived to be—fair and impartial.4

The FLRA provides a similar example. Where the

MSPB adjudicates disputes between the federal

government and its employees, the Federal Labor

Relations Authority adjudicates labor-management

relations in the federal government. Like the MSPB,

the FLRA was created by the CSRA, in the portion of

A related problem that unfettered removal can create is loss

of agency quorum. For example, when President Trump removed

Cathy Harris a member of the MSPB earlier this year, the Board

lost quorum for several months, shortly after the MSPB had

largely reduced a backlog of cases from a previous period where

the agency lacked quorum. Harris v. Bessent, 775 F. Supp. 3d

164, 171 (D.D.C. 2025). It disserves the public interest to have

backlogged MSPB cases involving allegations of “targeting of

federal employees based on political affiliation; retaliation

against whistleblowers reporting violations of law, waste, fraud

and abuse; discrimination; and USERRA violations.” Id. at 187.

the CSRA known as the Federal Service LaborManagement Relations Statute (FSLMRS). Pub. L.

No. 95-454, 92 Stat. at 1191-1218, codified at 5 U.S.C.

§§ 7101-35. The FLRA “adjudicates negotiability

disputes, unfair labor practice complaints, bargaining

unit issues, arbitration exceptions, and conflicts over

the conduct of representational elections.” ATF v.

FLRA, 464 U.S. 89, 93 (1983).

Because the federal government is a party in

these

labor-management

disputes,

Congress

structured the FLRA so that it would be independent

and impartial. The FLRA is multimember and

bipartisan, and members serve five-year staggered

terms. 5 U.S.C. § 7104(a), (c); Pub. L. No. 95-454, §

7104, 92 Stat. at 1196. Members of the FLRA (1) are

appointed by the President with the advice and

consent of the Senate and (2) may only be removed

after “notice and hearing and only for inefficiency,

neglect of duty, or malfeasance in office.” 5 U.S.C. §

7104(b).

Congress established the FLRA as “independent

and bipartisan” to “replace[]the Federal Labor

Relations Council, which had been criticized as

‘defective’ because its members ‘come exclusively from

the ranks of management.’” DOD v. FLRA, 659 F.2d

1140, 1145 (D.C. Cir. 1981). As Representative

William Lacy Clay, Sr., who played a key role in the

CSRA’s enactment, stated:

One of the central elements of a fair labor

relations program is effective, impartial

administration. Title VII provides for the

creation of an independent and neutral

Federal labor relations authority to

administer the Federal labor management

program …. Currently the Federal labor-

management program is administered by the

Federal Labor Relations Council which is

composed of three administration officials, …

none of whom can be considered neutral.

124 Cong. Rec. H25721 (Aug. 11, 1978) (statement of

Rep. William Ford); see also S. Rep. No. 95-969, at 7-8

(“Consolidating responsibility in FLRA should

eliminate what is perceived by Federal employee

unions and others as a conflict of interest in the

existing Council. … [The bill] will assure impartial

adjudication of labor-management cases by providing

for a new Board whose members are selected

independently—nominated by the President and

confirmed by the Senate.”). Congress viewed the

limitations on the President’s ability to remove

members of the FLRA as critical to the agency’s

independence and impartiality: “Impartiality is

guaranteed by protecting authority members from

unwarranted ‘Saturday night’ removals.” 124 Cong.

Rec. H25721-22.5

In numerous contexts, disputes within the FLRA’s

jurisdiction involving inadequate staffing and

working conditions for federal employees can have

direct consequences for public safety and welfare.

Federal employees are often called upon to respond to

natural disasters, protect the public from disease, and

provide security inspections. Understaffing and

unreasonable workhours for employees who ensure

public safety such as air traffic controllers and federal

firefighters could harm public safety. Similarly, the

FLRA can resolve disputes over working conditions

5 “Saturday night removals” of course referred to President

Nixon’s demand that the Attorney General fire special

prosecutor Archibald Cox, resulting in the resignations of the

Attorney General and the Deputy Attorney General.

and staffing for the inspectors of the Food Safety and

Inspection Service of the USDA, which ensures the

safety of meat, poultry, and egg products.

Congress determined that an independent MSPB

and FLRA were essential to ensuring a nonpartisan,

stable, and efficient federal civil service and,

ultimately, to protecting public safety and welfare.

That judgment was manifestly reasonable—indeed,

correct. See CSC v. Nat’l Ass’n of Letter Carriers, AFLCIO, 413 U.S. 548, 557 (1973) (“[T]he judgment of

history, a judgment made by this country over the last

century that it is in the best interest of the country,

indeed essential, that federal service should depend

upon meritorious performance rather than political

service.”)

III. REMOVAL PROTECTIONS PROMOTE ECONOMIC

STABILITY AND CONFIDENCE IN THE MARKETS

“In the financial realm, ‘independent agencies

have remained the bedrock of the institutional

framework governing U.S. markets.’” Seila Law LLC

v. CFPB, 591 U.S. 197, 276 (2020) (Kagan, J.,

concurring in part) (quoting Stavros Gadinis, From

Independence to Politics in Financial Regulation, 101

Cal. L. Rev. 327, 331 (2013)). Several independent

agencies that uphold the nation’s economic

infrastructure likewise depend for their effectiveness

on consistency and impartiality. The independence of

the Federal Reserve, for example, “stops a President

trying to win a second term from manipulating

interest rates.” Id. at 283 (Kagan, J., concurring in

part). The government’s brief (at 29-30) purports to

bypass that concern in regard to the Federal Reserve

Board by asserting that the Federal Reserve is

historically anomalous. But the Federal Reserve is not

the only independent agency that affects monetary

policy and depends on consistency and independence

to promote economic stability and investor confidence.

Congress created the National Credit Union

Administration (NCUA) in 1970 as a “credit union

supervisory body on a par with the agencies which

supervise and regulate banks,” like “the Federal

Reserve Board.” 116 Cong. Rec. S2417 (Feb 4, 1970)

(statement of Sen. John Sparkman). NCUA insures

deposits at credit unions (as the FDIC does for banks).

It also “protects the members who own credit unions,

and charters and regulates federal credit unions.”

NCUA, Mission and Values, https://perma.cc/5SFN3ZAP (last visited Nov. 13, 2025). Like the Federal

Reserve, NCUA initiates administrative proceedings,

issues cease-and-desist orders, and can remove creditunion officers for breaches of fiduciary duty. See 12

U.S.C. § 1786.

In 1978, Congress also created the National Credit

Union Central Liquidity Facility and placed it under

NCUA’s control. Id. § 1795. “[I]n the same way that the

Federal Reserve System discount window provided

access to loans for banks,” the Central Liquidity

Facility provides loans to credit unions. NCUA, Central

Liquidity Facility, https://perma.cc/W3F4-PDGT (last

visited Nov. 13, 2025). As a result, NCUA contributes

to control over the money supply by deciding if and

when to lend to credit unions.

When Congress created NCUA, it was led by a

single Administrator. President Ford removed the

Administrator without cause in 1976. Two years later,

relying

Humphrey’s

Executor,

Congress

restructured

NCUA,

replacing

the

single

Administrator with a Board of three members, each

appointed with advice and consent of the Senate to

six-year terms. See Swan v. Clinton, 100 F.3d 973, 975

(D.C. Cir. 1996). No more than two members of

NCUA’s Board can come from the same political

party. 12 U.S.C. § 1752a(b)(1). Congress made these

changes in part “to strengthen NCUA’s status as an

independent agency.” Harper v. Bessent, No. 25-cv1294, 2025 WL 2049207, at *4 (D.D.C. July 22, 2025)

(quoting Swan, 100 F.3d at 982).

Without independence and consistent leadership,

NCUA risks becoming a political tool—allowing

Presidents to use removal or the threat of removal of

NCUA Board Members as a means to direct the

agency’s actions. That power could be deployed to

circumvent the Federal Reserve’s independence. A

President who could not direct the Federal Reserve to

lower interest rates could, for example, direct NCUA

to aggressively lend to credit unions. Or the President

could require NCUA to lower the amount of money

that credit unions must keep in reserve. These actions

would increase the money supply, which could lower

the interest rate. Carving out the Federal Reserve

would not stop monetary policy from shifting with

political tides or whims.

Likewise, agencies that regulate financial

markets require independence so that investors know

regulation is in service of an effective and efficient

market, not the result of short-term political interests.

The Securities and Exchange Commission

regulates markets “to protect interstate commerce,

the national credit, [and] the Federal taxing power, to

protect and make more effective the national banking

system and Federal Reserve System, and to insure the

maintenance of fair and honest markets in such

transactions.” 15 U.S.C. § 78b. The SEC is governed

by a board of five commissioners, each appointed for

five-year terms. Id. § 78d(a). No more than three

members can come from the same political party. Id.

And each is forbidden to “participate, directly or

indirectly, in any stock-market operations or

transactions” that are regulated by the SEC. Id.

As one former commissioner put it, the SEC’s

independence means that commissioners “make our

decisions based on an impartial assessment of the law

and the facts and what we believe will further our

mission—and never in response to political pressure,

lobbying, or even public clamor.” Mary Jo White,

Chair, SEC, The Importance of Independence, 14th

Annual A.A. Sommer, Jr. Corporate Securities and

Financial Law Lecture at Fordham Law School (Oct.

3, 2013), https://perma.cc/RU8C-L6MG. Because of

the SEC’s independence, investors can be confident

that regulators act to protect the integrity of financial

markets.

If, on the other hand, the SEC could not maintain

its independence, investors will rightly suspect that

each new administration could dramatically change

market risk by making volatile changes. For example,

an administration could remove any commissioner

unwilling to make an immediate 180-degree change

on policies about enforcement against businesses in

favored industries. And an administration could

require novel and extensive disclosures by businesses

in disfavored industries. In such a world, SEC

enforcement actions and disclosure requirements—

core powers for ensuring the integrity and stability of

the markets—could be used to reward political allies

and punish opponents. Confidence in the SEC and the

integrity of American financial markets, once lost,

may be impossible to recover, and investors will prefer

to invest their funds in foreign countries where

enforcement decisions are not subject to a cloud of

political interference. Such a result could

dramatically undermine the fundamental role that

the nation’s financial markets have had in promoting

a robust economy.

The Court’s decisions on the validity of removal

protections have focused on the agency’s history and

structure and whether its functions are legislative,

judicial, or executive. But the analysis should also

consider the agency’s role in maintaining public safety

and infrastructure and the extent to which

independence is necessary for the agency to perform

those vital functions. To do otherwise would in many

cases jeopardize public safety and infrastructure, the

structural integrity of government, and economic

stability.

CONCLUSION

The judgment should be affirmed.

Respectfully submitted.