from the going-through-the-motions dept
Judge Loren AliKhan knows exactly how this story ends, but she’s going to make the Supreme Court write the final chapter themselves. Her ruling reinstating illegally fired FTC Commissioner Rebecca Kelly Slaughter reads like judicial theater—a careful performance of applying precedent everyone knows is doomed.
We discussed this a bit when Trump first illegally fired both Slaughter and her other Democratic colleague on the Commission, Alvaro Bedoya. The legal foundation here should be rock solid: Humphrey’s Executor from 1935, where the Supreme Court told FDR he couldn’t fire FTC commissioners because Congress made the agency independent.
Bedoya was also a plaintiff but had to resign to get another job after the federal government stopped paying him—a detail that underscores just how immediate the harm is when Trump decides to ignore the law. Because of that, the judge claims that his claims here are moot.
The problem, though, is that the majority of the Supreme Court has made it clear it hates Humphrey’s Executor. In the last decade and a half, the Supreme Court has systematically hollowed out Humphrey’s Executor while telegraphing their eagerness to finish the job. You almost wonder if Trump fired Slaughter and Bedoya mainly to give the Supreme Court the exact vehicle to end Humphrey’s.
So we get this careful judicial performance. AliKhan methodically works through why Trump’s legal arguments are bullshit, while basically admitting she’s building a record for the Supreme Court to ignore.
The answer to the key substantive question in this case—whether a unanimous Supreme Court decision about the FTC Act’s removal protections applies to a suit about the FTC Act’s removal protections—seems patently obvious. In arguing for a different result, Defendants ask this court to ignore the letter of Humphrey’s Executor and embrace the critiques from its detractors. Defendants hope that, after doing so, this court will bless what amounts to the implied overruling of a ninety-year-old, unanimous, binding precedent. Because “it is [the Supreme] Court’s prerogative alone to overrule one of its precedents,” United States v. Hatter, 532 U.S. 557, 567 (2001) (quoting State Oil Co. v. Khan, 522 U.S. 3, 20 (1997)), the court cannot, and will not, fulfill that request.
This isn’t happening in isolation. AliKhan points to similar Trump power grabs at the National Labor Relations Board (NLRB) and Merit System Protects Board (MSPB) that courts initially blocked:
Indeed, courts have already considered—and rejected—President Trump’s challenges to similar removal restrictions for other independent, multimember agencies. In Wilcox v. Trump, 775 F. Supp. 3d 215 (D.D.C. 2025), for example, the court blocked President Trump’s attempt to remove a member of the National Labor Relations Board (“NLRB”) by relying on Humphrey’s Executor. Id. at 223-35. In so holding, it rebuffed President Trump’s argument that the Supreme Court had “repudiat[ed]” Humphrey’s Executor. Id. at 228-29. Similarly, in Harris v. Bessent, 775 F. Supp. 3d 164 (D.D.C. 2025), the court held that President Trump’s attempt to remove a member of the Merit System Protects Board (“MSPB”) was unlawful under Humphrey’s Executor. Id. at 173-178. It held that the Supreme Court had recently “reaffirmed the constitutionality of multimember boards with for-cause removal protections, as those agencies have a robust basis in this country’s history.”
But then AliKhan basically admits the game is rigged. She walks through how those seemingly protective rulings got systematically undermined: appeals court stays, en banc reversals, then the Supreme Court’s emergency docket doing what it does best—blessing Trump’s authoritarianism through procedural sleight of hand.
But, they did so without mentioning Humprhey’s.
So technically, Humphrey’s remains good law even as the Court signals its contempt for it. AliKhan admits that the government is asking her to “read the tea leaves”—to ignore binding precedent based on vibes and Supreme Court semaphore. Even the Court’s language about presidential removal power being “subject to narrow exceptions recognized by our precedents” feels like bait.
And those precedents still include Humphrey’s.
But everyone, including the judge, knows what’s going to happen next, but that doesn’t mean she should frontrun the Supreme Court:
That said, the court acknowledges that the Supreme Court has questioned aspects of the Humphrey’s Executor decision. For example, in Morrison, the Court noted in dicta that “it is hard to dispute that the powers of the FTC at the time of Humphrey’s Executor would at the present time be considered ‘executive,’ at least to some degree.” Morrison, 487 U.S. at 689 n.28. And more recently, in Seila Law, the Court observed—again in dicta—that the “conclusion that the FTC did not exercise executive power has not withstood the test of time.” 591 U.S. at 216 n.2. But whether or not the Supreme Court has lost faith in its ninety-year-old holding is not a decision for this court to make. See Agostini v. Felton, 521 U.S. 203, 238 (1997) (holding that the trial court was correct to apply “binding precedent” “unless and until [the Supreme] Court reinterpreted [it]”). Even if the Supreme Court eventually chooses to overrule Humphrey’s Executor, it would be an act of judicial hubris for this court to do so prematurely
She later notes:
Defendants are, of course, free to take their quarrels with Humphrey’s Executor to the Supreme Court. This court has no illusions about where this case’s journey leads. But for the time being, Defendants’ attempt to remove Ms. Slaughter from her position as an FTC Commissioner did not comply with the FTC Act’s removal protections. Because those protections remain constitutional, as they have for almost a century, Ms. Slaughter’s purported removal was unlawful and without legal effect.
The subtext is deafening: “this court has no illusions about where this case’s journey leads.” AliKhan is creating a perfect record for the Supreme Court to reverse, while making them own the authoritarian power grab explicitly. It’s judicial resistance theater—principled, doomed, and ultimately serving to highlight just how far the Supreme Court has drifted from any pretense of following the law when Trump wants something.
Slaughter gets her job back, for now. But this is just Trump’s latest move in systematically dismantling the administrative state, one independent agency at a time. The Supreme Court will give him what he wants—they’re just making the lower courts do the paperwork first.
Filed Under: alvaro bedoya, doj, donald trump, ftc, humphrey’s executor, independent agencies, loren alikhan, rebecca kelly slaughter
