from the humphreys-executor-lives-to-die-another-day dept
The DC Circuit Court of Appeals did something remarkable last week—they followed binding Supreme Court precedent. In 2025. Involving Trump. Which, predictably, got them immediately overruled by the Supreme Court just days later.
In a 2-1 decision, the court dissolved the government’s stay and ordered that FTC Commissioner Rebecca Kelly Slaughter be reinstated to her position, while essentially admitting that the Supreme Court would almost certainly reverse this decision very soon. They were right: Chief Justice John Roberts granted an administrative stay blocking that ruling from taking effect on Monday morning, with no explanation whatsoever. There will now be more briefing, but the case will still be rushed through the shadow docket, and Roberts putting the DC Circuit ruling on hold without any explanation gives you a sense of where the court is likely to go.
The imperial president will get his wish to fire an FTC Commissioner despite binding Supreme Court precedent to the contrary.
As we covered when the district court initially ruled, Trump illegally fired both Slaughter and Commissioner Alvaro Bedoya without cause, violating the clear statutory protections that require FTC commissioners be removed only for “inefficiency, neglect of duty, or malfeasance in office.” The Trump DOJ immediately sought and received a stay of that ruling, but this new DC Circuit order dissolves that stay and puts Slaughter back in her job.
The majority opinion makes clear just how legally straightforward this case should be—and how politically fraught it actually is.
The court doesn’t mince words about the government’s chances in normal times:
The government is not likely to succeed on appeal because any ruling in its favor from this court would have to defy binding, on-point, and repeatedly preserved Supreme Court precedent. Bucking such precedent is not within this court’s job description.
At another point, it’s even more direct about the government’s chances (again, with the “in normal times” implied):
The government has no likelihood of success on appeal given controlling and directly on point Supreme Court precedent.
But, of course, all that is based on the flimsy belief that binding precedent remains binding precedent under this Supreme Court.
That binding precedent in this case, of course, is Humphreys Executor v. United States from 1935, where a unanimous Supreme Court told FDR he couldn’t fire FTC commissioners at will. The DC Circuit methodically explains why that precedent remains controlling, despite the government’s arguments that the FTC has somehow “outgrown” the protections the Court established 90 years ago.
The court demolishes the government’s argument that the modern FTC exercises fundamentally different powers than the 1935 version by walking through a detailed comparison:
Then, as now, the Commission could investigate potential violations of federal law, including by issuing subpoenas and seeking their enforcement. As the Supreme Court recognized, the 1935 Commission had “wide powers of investigation[,]” Humphreys Executor, 295 U.S. at 621, including the power to launch investigations “at its own instance[,]”
The opinion continues this “then, as now” structure through multiple paragraphs, showing that the Commission’s investigatory powers, its ability to prosecute violations through administrative complaints, and its rulemaking authority all existed in substantially similar forms when Humphrey’s Executor was decided. Each paragraph includes plenty of details and examples of the FTC in 1935 doing these very same things.
In 1935, as now, the Commission could also prosecute violations by issuing administrative complaints…..
And in 1935, as now, the Commission could promulgate rules and regulations, as well as issue reports….
Even Trump’s strongest argument—that the modern FTC can seek monetary penalties in federal court—gets shot down:
The government emphasizes that the present-day Commission can seek monetary penalties against private parties in federal court. … But much of that authority stems from the Commission’s 1935 authority to issue cease-and-desist orders. See 15 U.S.C. § 45(l), (m)(1)(B). This power is therefore an “outgrowth[]” of the Commission’s original enforcement and remedial powers, not a “dramatic transformation[] of the ‘character of the office.’”
The court systematically refutes the government’s argument that recent Supreme Court decisions have implicitly overruled Humphrey’s Executor. Instead, it points out that the Court has repeatedly and explicitly preserved the precedent:
In the intervening decades, the Supreme Court has not overruled Humphrey’s Executor. Quite the opposite, it has preserved Humphrey’s Executor at every turn.
The opinion walks through case after case where the Court could have overruled Humphrey’s Executor but chose not to—from Wiener in 1958, through Morrison in 1988, and up to Seila Law in 2020 and Collins in 2021. Indeed, it highlights that in Seila Law (about the CFPB), the Supreme Court suggested that if Congress wanted to protect CFPB members from being fired, it should reconstitute it to be more like the FTC:
This trend has continued in recent years even as the Supreme Court has narrowed the constitutional scope of limits on the removal power in other contexts. See Free Enter. Fund, 561 U.S. at 483 (acknowledging and leaving intact Humphrey’s Executor); Seila Law, 591 U.S. at 228 (“[W]e do not revisit Humphrey’s Executor or any other precedent today * * * *”); Collins, 594 U.S. at 250–251 (reiterating that Seila Law did not overrule Humphrey’s Executor, but merely “found ‘compelling reasons not to extend’” Humphrey’s Executor to a “novel context”) (quoting Seila Law, 591 U.S. at 204). In fact, in Seila Law, a majority of the Supreme Court invited Congress to remake the Consumer Financial Protection Bureau in the same mold as the Federal Trade Commission, which Humphrey’s Executor had upheld. See 591 U.S. at 237 (Roberts, C.J., joined by Alito and Kavanaugh, JJ., concurring in the judgment); id. at 298 (Kagan, J., joined by Ginsburg, Breyer, and Sotomayor, JJ., concurring in the judgment with respect to severability and dissenting in part).
The court also distinguishes this case from recent Supreme Court stay orders in Trump v. Wilcox and Trump v. Boyle, where the Court allowed Trump to remove members of other independent agencies. The key difference? Those cases involved extending Humphrey’s Executor to new agencies, while this case involves the exact same agency and statute already blessed by Humphrey’s Executor:
The present case, however, differs in material respects from recent removal cases in which the Supreme Court has granted the government’s request for a stay. See Trump v. Wilcox, 605 U.S. ___, 145 S. Ct. 1415 (2025); Trump v. Boyle, 605 U.S. ___, No. 25A11, slip op. (U.S. July 23, 2025). In those cases, an extension of Humphrey’s Executor to a new context would have been required for the removed officials to prevail on the merits. In contrast, the present case involves the exact same agency, the exact same removal provision, and the same exercises of executive power already addressed by the Supreme Court in Humphrey’s Executor and subsequent decisions, and so is squarely controlled by that precedent.
The court even notes that the Supreme Court’s stay order in Wilcox explicitly reaffirmed that removal protections already recognized by precedent—like those in Humphrey’s Executor—remain in effect.
The dissent from Judge Neomi Rao (a very loyal Trump appointee) reads like a legal brief written by someone who really, really wants to be promoted to the Supreme Court someday. She essentially argues that Humphrey’s Executor should be ignored because… reasons.
First, she admits she thinks Humphrey’s Executor should be overruled:
I have long thought that Humphreys Executor should be overruled because it is inconsistent with the Constitution’s vesting of all executive power in the President and with more recent Supreme Court decisions.
But since she can’t actually overrule Supreme Court precedent, she instead argues that the district court’s injunction ordering Slaughter’s reinstatement exceeds judicial authority:
Even assuming that Slaughter’s removal was unlawful, the district court nonetheless lacked the power to issue the injunction… Such injunctive relief is unprecedented and creates a direct confrontation with the President over his core Article II powers.
Her argument basically boils down to: even if Trump broke the law, courts can’t do anything meaningful about it because that would interfere with presidential power. It’s constitutional law by way of “L’état, c’est moi.”
Most tellingly, Rao argues that recent Supreme Court stay orders should control here, even though those cases involved different agencies and statutes and were all on the shadow docket, rather than based on the fully briefed merits:
The reasoning of these orders must be applied to stay Slaughter’s reinstatement. Everyone agrees that FTC commissioners are principal officers who exercise substantial executive power.
Of course, everyone here knows how this likely ends: with the Trump-loyal Supreme Court ignoring all precedent and tossing Humphrey’s Executor into the wood chipper. After the unambiguous ruling by the DC Circuit, Trump’s DOJ quickly asked the Supreme Court to issue a stay of the DC Circuit’s ruling. It made the same arguments that the DOJ has been making all along: that all those recent decisions say that Humphrey’s Executor is effectively overruled, and Trump can fire anyone he damn well wants to fire.
Commissioner Slaughter has filed asking the Court not to grant the stay Trump is requesting, which always seemed unlikely to work. And, indeed, Chief Justice John Roberts put the DC Circuit ruling aside, issuing a stay of the ruling on Monday morning.
Roberts didn’t waste much time. He just issued the stay immediately, proving exactly what everyone already knew: this Supreme Court will bend over backwards to give Trump whatever he wants, binding precedent be damned. The stay puts the DC Circuit ruling on hold while the Court considers the issue on the emergency docket, meaning Slaughter remains out of her job in the meantime.
The DC Circuit did what Judge AliKhan did at the district court level—creating a perfect record for the Supreme Court to reverse while making them own the authoritarian power grab explicitly. It was principled, but ultimately pointless. Everyone involved knows this is just another step in Trump’s systematic dismantling of the administrative state, with the Supreme Court’s eager assistance. The only question now is whether they’ll have the intellectual honesty to overrule Humphrey’s Executor explicitly when the case eventually is ruled upon more fully, or whether they’ll continue the charade of distinguishing it into oblivion while pretending they’re not doing exactly what everyone knows they’re doing.
Filed Under: dc circuit, donald trump, ftc, humphrey’s executor, neomi rao, precedent, rebecca kelly slaughter, shadow docket, supreme court
