UPDATE: Supreme Court to Revisit Humphrey’s Executor in December; Reinstatement of Former FTC Commissioner Slaughter Stayed Pending the Supreme Court’s Review

The latest development in the ongoing legal saga regarding the scope of presidential authority to fire officials at various independent federal agencies occurred on September 22, 2025, when the Supreme Court of the United States (SCOTUS or the Court) granted a stay of the reinstatement of Rebecca Slaughter, a former commissioner at the Federal Trade Commission (FTC). The Court also granted a writ of certiorari without waiting for judgment on the merits by the federal appeals court, directing the parties to brief two questions for the Court’s December 2025 argument session: “(1) Whether the statutory removal protections for members of the [FTC] violate the separation of powers and, if so, whether Humphrey’s Executor v. United States, 295 U.S. 602 (1935), should be overruled. (2) Whether a federal court may prevent a person’s removal from public office, either through relief at equity or at law.” While this case concerns the FTC, any decision affecting Humphrey’s Executor will have wide-reaching effects, as that nearly century-old SCOTUS precedent limits the president’s authority to fire without cause officers at many independent agencies.

As we discussed earlier this month, the Court issued a temporary stay of Slaughter’s reinstatement without addressing the merits of the pending appeal challenging the president’s authority to fire the commissioner. Yesterday’s decision again puts SCOTUS at odds with the lower courts, which have shown a strong deference to Humphrey’s Executor. In the present case, Slaughter argues that Humphrey’s Executor settled specifically whether a U.S. president could fire FTC commissioners without cause. But, as in other recent cases involving Trump’s at-will firings at independent federal agencies – including the Consumer Product Safety Commission (CPSC), the National Labor Relations Board (NLRB), and the U.S. Merit Systems Protection Board (MSPB) – SCOTUS reversed the lower courts’ decisions and granted a stay of reinstatement orders.

Yesterday’s brief decision was issued by Chief Justice John Roberts, via the emergency docket and without explanation. Justices Kagan, Sotomayor, and Jackson dissented. In a strongly worded dissent, Justice Kagan argued that by issuing the stay, the Court is “enabling the President to immediately discharge, without any cause, a member of the … FTC.” She further argued that even if Humphrey’s Executor is overturned, “until the deed is done, Humphrey's controls, and prevents the majority from giving the President the unlimited removal power Congress denied him … Our emergency docket should never be used, as it has been this year, to permit what our own precedent bars. Still more, it should not be used, as it also has been, to transfer government authority from Congress to the President, and thus to reshape the Nation’s separation of powers.”

If the Court decides to overturn Humphrey’s Executor, as is widely expected, that will have deep repercussions for independent federal agencies, including, potentially, the Federal Reserve, from which Lisa Cook, a member of the Federal Reserve’s Board of Governors, was fired by President Trump in August 2025. Like other independent agency officials, Cook sued the administration, citing violations of statutory for-cause removal protections (this time, under the Federal Reserve Act) and the Due Process Clause of the U.S. Constitution. The Court’s earlier decision involving terminations at the NLRB and MSPB nevertheless suggested that the Federal Reserve should be treated differently from other federal agencies. Both the U.S. District Court and Court of Appeals for the District of Columbia found in Cook’s favor. On September 18, 2025, the Trump administration submitted an application to SCOTUS requesting an administrative stay of Cook’s reinstatement. Cook’s case is slated to be heard by the Court on November 5, 2025. The scope of the lower court’s powers to order reinstatement, back pay, or some other relief will also likely be addressed when SCOTUS does rule on the merits.