Unpacking the Presidential Appointments Lawsuit

This essay was first published in the December 9, 2025 Epoch Times.

The Supreme Court has concluded oral arguments in Trump v. Slaughter. In that case, Rebecca Slaughter, a member of the Federal Trade Commission (FTC), is contesting President Donald Trump’s effort to fire her before her seven-year term has run.

The president counters that the FTC is an agency of the executive branch, and that as chief executive he may dismiss any of its members.

For the court to decide in favor of the president, it probably would have to overrule Humphrey’s Executor v. United States (1935). In Humphrey’s Executor, the court decided that Congress could create independent government commissions whose members serve for fixed terms and are not subject to dismissal at presidential discretion. The FTC was the agency involved there as well.

Congress had created the FTC under the influence of the “progressive” political view that most government decisions should be made by boards of independent experts rather than by elected officials.

The court’s opinion in Humphrey’s Executor was composed by Justice George Sutherland. Historians often categorize Justice Sutherland as a judicial conservative, but in truth he leaned more toward the progressive side. Humphrey’s Executor was only one of several cases in which he propounded a “progressive” view of government.

Sutherland quoted favorably congressional language that described the FTC as “not to be subject to anybody in the government but … only to the people of the United States … separate and apart from any existing department of the government.”

The decision in Humphrey’s Executor is under attack today because it suffers from severe constitutional flaws.

The first flaw involves the meaning of words: Justice Sutherland notwithstanding, any agency created to “carry into operation” federal policy is by definition an executive agency: “to execute” means “to carry out.” Characterizing the agency as “quasi-legislative” or “quasi-judicial” does not change that.

Second, if the FTC is quasi-legislative, then it is illegitimate because the Constitution vests “all legislative Powers herein granted” to Congress and Congress alone (Article I, Section 1).

Third, if it is quasi-judicial, it likewise is illegitimate because the Constitution vests all judicial power in the courts (Article III, Section 1).

Fourth: Even if the FTC were legislative (“quasi” or otherwise), then republican theory (which serves as a basis for the Constitution) would require that its commissioners be directly or indirectly elected by the people.

Fifth: If the FTC were judicial, then the Constitution would require appointment “during good behavior” rather than for limited terms (Article III, Section 1).

Thus, Sutherland’s opinion in Humphrey’s Executor is constitutionally incoherent. But it authorized Congress to create a fourth branch of government directly responsible to none of the legitimate three branches. The FTC, like other “independent” agencies in the Washington, D.C. alphabet soup, is purportedly legislative without being responsible to the voters. It is purportedly judicial without the lifetime tenure necessary to assure judicial impartiality. And it is in fact executive, but without any responsibility to the elected chief executive.

In short, Humphrey’s Executor looks more like surreptitious constitutional amendment than like constitutional interpretation.

But What If?

So I think it’s clear that Humphrey’s Executor deserves to be overruled. On the other hand, a mere overruling presents other problems. The power of the “imperial presidency” already is excessive, and, as some have suggested, abandoning Humphrey’s Executor would augment it further.

The imperial presidency is partly the creation of other 20th century Supreme Court decisions. One was Myers v. United States (1926). In Myers, the justices ruled that the president could fire executive branch employees, even when the Constitution required Senate consent to their appointment. That ruling was correct, but Chief Justice William Howard Taft added some dicta (optional side comments). He wrote that the first sentence of the Constitution’s Article II (the so-called Executive Vesting Clause) granted the president broad, undefined “executive Power” beyond the scope of the powers the document expressly or impliedly gives him.

Also contributing to excessive presidential power has been the Supreme Court’s acquiescence while Congress has delegated vast authority to the executive branch. The theory of the Constitution is that “We the People” delegated specific powers to federal (and some state) institutions, and that those powers could not be delegated further without the people’s consent. (The legal maxim was Delegata potestas non potest delegari—“a delegated power cannot be delegated.”) Congress could tell the executive to undertake enforcement in different ways in different circumstances, but it could not transfer legislative authority wholesale to the chief executive.

The Supreme Court recognized this “non-delegation” principle in a 1935 case. But since that time, it has acquiesced while Congress transfers legislative authority wholesale to the president and to executive agencies. Exemplifying this are the statutes under consideration in the Supreme Court’s current case about the president’s tariffs. When read together, those statutes purport to give the president the right to exercise nearly uncontrolled power to “regulate importation.”

Thus, judicial mistakes have helped create a presidency many people expect to cure disease, create jobs, and raise school test scores. That is not the office created by the Constitution.

Although when deciding Trump v. Slaughter, the court cannot go beyond the confines of that case to reverse the Myers dicta or the delegation cases, it can and should announce the following: (1) recognize that Humphrey’s Executor is only one of several Supreme Court decisions that may have distorted the congressional-executive balance, and (2) in appropriate future cases, it would be willing to reconsider the Myers dicta and those decisions that authorize excessive congressional delegation to the President.

But What If?

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