President Donald Trump has faced legal roadblocks in his bids to fire independent agency heads, but following wins on the Supreme Court’s emergency docket, the president’s firing power faces its largest test before the high court’s merits docket on Monday.
The Supreme Court will hear arguments in Trump v. Slaughter on Monday morning, after elevating the emergency docket case to the merits docket in September. The case marked the third time the issue of presidential firings, without cause, of independent agency heads arrived at the emergency docket. The high court allowed the president to fire officials in the interim both of the previous times.
The first case to make it to the emergency docket, Trump v. Wilcox, dealt with the firing of Gwynne Wilcox of the National Labor Relations Board and Cathy Harris of the Merit Systems Protection Board. The high court issued an order in May allowing the firings based on the ruling that both Wilcox and Harris exercised executive power.
“Because the Constitution vests the executive power in the President…he may remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions recognized by our precedents,” the unsigned May order said. “The stay reflects our judgment that the Government is likely to show that both the NLRB and MSPB exercise considerable executive power.”
The unsigned order said that it was not deciding whether either agency “falls within such a recognized exception” and said further questions on presidential authority to fire these officials would best be left for a full merits review by the high court. With Slaughter, the high court will review the president’s power to fire these agency heads.
The case is widely expected to undo the Supreme Court precedent established in the 1935 ruling in Humphrey’s Executor v. United States. The high court’s ruling 90 years ago said that then-President Franklin D. Roosevelt could not fire an FTC commissioner at his discretion and could only fire him “for cause,” as outlined in the law passed by Congress authorizing the creation of the FTC.
The high court has since chipped away at the restrictions placed on presidential firings of independent agency heads, and the current case also deals with the firing of an FTC commissioner. With both of those factors going in favor of the president’s case, the Justice Department asked the justices to fully overrule Humphrey’s Executor with its ruling in Slaughter.
“If Humphrey’s Executor is not already a dead letter, this Court should overrule it and end independent agencies’ ‘serious, ongoing threat to our Government’s design,’” the Justice Department said in its brief to the Supreme Court.
The DOJ has argued that the president should have vast power to fire the heads of independent agencies under the executive branch, arguing that Congress can “establish and organize executive departments underneath the President—not to establish a Fourth Branch that siphons executive power away from the Chief Executive’s control.”
Rebecca Slaughter, who has fought her firing to the Supreme Court, argues her position and similar positions are protected from firing by the president without cause. Her lawyers stressed in their brief to the high court that siding with the Trump administration would be “transferring to the Presidency vast new powers that Congress and prior Presidents, working together, chose not to vest in the President alone.”
“For almost a century, the political branches have created dozens of traditional independent agencies—and vested them with sensitive and critical responsibilities—in good-faith reliance on this Court’s precedents upholding removal protections of the kind at issue here,” Slaughter’s brief said.
“Retroactively eliminating the ‘independence’ of traditional independent agencies would destroy those reliance interests—and deprive the public of the regulatory stability, and related protections for individual liberty, that multimember agencies provide,” the brief continued.
While the high court has hinted through its emergency docket rulings that it appears ready to at least further chip away at the precedent set by Humphrey’s Executor, they do appear to still recognize some agencies where the president cannot fire without cause. In the Wilcox order earlier this year, the signed majority noted that the Federal Reserve is a “uniquely structured, quasi-private entity” with a “distinct historical tradition” which would likely not affect its requirements to show cause for a president to fire a member.
How the high court will decide what the standard for a president to fire an agency head without cause will be the key question to watch for during Monday’s arguments. Stephanie Barclay, a professor and co-director of the Georgetown Center for the Constitution at Georgetown University Law Center, believes there are various ways the justices could craft a rule for when cause is not required for an agency head firing.
“There could be a world in which the answer is just the president has removal authority over everyone within the executive branch, and that’s that. The court could sort of draw from Humphrey’s Executor to say that it needs to be something like significant executive power, they could narrow Humphrey’s Executor to a pure adjudication context,” Barclay said during a Federalist Society panel Friday.
“They could do the remedial off ramp where they just say that for cause protections are constitutional, but the court lacks power to enforce them through something like reinstatement,” she added.
PRESIDENTIAL EMERGENCY POWERS A LOOMING ISSUE AT THE SUPREME COURT
The Supreme Court will hear arguments in Trump v. Slaughter on Monday at 10 a.m. and is expected to issue a ruling as soon as early 2026. All rulings for the current Supreme Court term are expected to be released by the end of June 2026.
The Slaughter case marks the latest test of Trump’s presidential powers and actions before the high court. The justices heard arguments last month in a case reviewing the legality of Trump’s “Liberation Day” tariffs last month, and announced Friday they will review the constitutionality of the president’s birthright citizenship executive order later this term.
