SCOTUS Stays Federal Appeals Court Order Reinstating Fired FTC Commissioner; Fourth Circuit Oral Argument on CPSC Firings Tentatively Scheduled

On September 8, 2025, once again, the question of the President’s authority to terminate, without cause, commissioners of independent agencies, was examined in federal court and appealed to the Supreme Court, and once again, the Supreme Court of the United States (SCOTUS) overruled the court of appeals and granted a temporary stay of that court’s order reinstating a fired commissioner without addressing the merits of the pending appeal.

Prior to this, on September 2, 2025, a three-person panel of the U.S. Court of Appeals for the District of Columbia denied, in a 2-1 split, the Trump administration’s request for a stay pending appeal, concluding that Commissioner Rebecca Slaughter’s firing from the Federal Trade Commission (FTC) by President Trump in March violated federal law. As we previously wrote in July, the D.C. Circuit issued a brief administrative stay of another lower court order reinstating Commissioner Slaughter while it considered the merits of an emergency motion by the Trump administration to pause her reinstatement pending appeal. Last week, D.C. Circuit Judges Patricia Millett and Cornelia Pillard found that the equitable factors, if decided in favor of the administration, would conflict with SCOTUS precedent, especially because a single Democratic commissioner in an agency with a three-member Republican majority would not have sufficient power to unilaterally override the President’s goals. The majority also rejected the Trump Administration’s request for an expedited appeal hearing.

The opinion of the D.C. Circuit’s two majority judges showed a strict adherence to precedent from the landmark, unanimous Supreme Court ruling in Humphrey’s Executor (1935), which held that Congress’ limitation on the President’s power to remove an FTC commissioner only for cause did not violate the President’s Article II powers. The D.C. Circuit judges wrote:

The government has no likelihood of success on appeal given controlling and directly on point Supreme Court precedent … Over the ensuing decades—and fully informed of the substantial executive power exercised by the Commission—the Supreme Court has repeatedly and expressly left Humphrey’s Executor in place, and so precluded Presidents from removing Commissioners at will. Then just four months ago, the Supreme Court stated that adherence to extant precedent like Humphrey’s Executor controls in resolving stay motions. To grant a stay would be to defy the Supreme Court's decisions that bind our judgments. That we will not do.

The majority relied heavily on the fact that Humphrey’s Executor involved the FTC, and its analysis suggested that the agency’s powers were fully analyzed and had changed little in the intervening years.

In a dissenting opinion, Judge Neomi Rao argued that, notwithstanding Humphrey’s Executor, a stay is merited because the Supreme Court’s assessment of the equities related to terminating sitting commissioners in its recent opinions in Wilcox and Boyle makes it likely that “the government [will] prevail on the merits of its challenge.” Judge Rao went on to say that “the Supreme Court has reaffirmed that when a court orders reinstatement of an officer removed by the President, the balance of harms favors the government and warrants a stay.” Judge Rao also suggested that the courts do not have equitable authority to order reinstatement under Article II of the Constitution.

The Trump administration appealed the D.C. Circuit’s September 2 order to the Supreme Court within two days, requesting that the justices temporarily stay Slaughter’s reinstatement by the district court while the appeal on the merits continues in the D.C. Circuit court, and also to rule on the merits of the government’s appeal without waiting for a decision by the D.C. Circuit. Slaughter immediately opposed the request for a stay and asked for a deadline to submit a response to the government’s request for a stay. However, Chief Justice John Roberts issued a temporary stay of Slaughter’s reinstatement on September 8. As noted above, in issuing the temporary stay, SCOTUS did not address the merits of the pending appeal or the current scope of Humphrey’s Executor.

We saw a similar pattern in a challenge to the President’s firing without cause of three Democratic commissioners at the U.S. Consumer Product Safety Commission (CPSC), which resulted in a district court’s reinstatement of the commissioners. The Fourth Circuit followed with an order denying the administration’s request for a stay of the reinstatement order during the appeal. The Supreme Court then issued a stay. That appeal is still pending before the Fourth Circuit, where the issues are now fully briefed by the administration and the former commissioners. Several amicus briefs have been submitted by consumer advocates, industry organizations and, most recently, by twenty-seven members of Congress. The case is now tentatively scheduled for oral argument during the December 9-12, 2025, argument session of the Fourth Circuit.

It ultimately falls to the Supreme Court to decide the various constitutional questions involving presidential authority over independent agencies, including the powers of the courts in such cases. The latest SCOTUS decision staying yet another lower court’s ruling that the President illegally terminated leaders at independent agencies without cause tends to suggest that Humphrey’s Executor is likely to be narrowed or overruled.