| Deborah A. Elman, Randy Stutz, Kathleen W. Bradish, David O. Fisher
FTC
On November 14, 2025, the American Antitrust Institute (AAI) and the Committee to Support the Antitrust Laws (COSAL) filed an amicus brief in the Supreme Court in Trump v. Slaughter, No. 25-332.
In March, President Trump fired FTC Commissioner Rebecca Kelly Slaughter without cause, in knowing violation of Section 1 of the FTC Act, which limits such firings to instances of “inefficiency, neglect of duty, or malfeasance in office.” Slaughter sued, arguing that the firing directly contravenes the statutory provision and the Supreme Court’s 1935 decision upholding it in Humphrey’s Executor v. United States, 295 U.S. 602. The D.C. district court agreed, ordering Slaughter’s reinstatement, and the President appealed. Before the D.C. Circuit heard the appeal, the Supreme Court voted 6-3 to issue a writ of certiorari before judgment, certifying the question of whether the FTC Act’s for-cause removal provision violates the separation of powers and, if so, whether Humphrey’s Executor should be overruled.
In their amicus brief urging the Court to uphold for-cause removal, AAI and COSAL argue that the Constitution does not give the President unchecked removal power. Article II’s language vesting the Executive Power in the President and directing him to “take Care that the Laws be faithfully executed” were not understood at the time of the founding or in the 250 years since to grant that power. Furthermore, the President has significant control of the executive functions of the FTC through his sole authority to designate and de-designate the Chair. He also dictates the FTC’s litigation strategy and steers foreign engagement through his control of the Department of Justice and the State Department.
AAI and COSAL also argue that the for-cause removal provision is a critical feature of Congress’s design of the FTC as a consensus-driven body that carries out broad, expertise-based functions, assists Congress and the courts, and supplements antitrust enforcement by the Executive. Insulating its expertise-based functions from direct political pressure serves to protect individual liberties, foster stable decision-making, and facilitate sound antitrust policy. For these reasons, the FTC Act’s removal provisions have become the basis for a broad international consensus on agency design principles, and invalidating them would harm U.S. consumers and businesses at home and abroad.
The brief was co-written by COSAL Vice President and Garwin Gerstein & Fisher LLP Partner Deborah Elman, AAI President Randy Stutz, AAI Vice President and Director of Legal Advocacy Kathleen Bradish, and AAI Senior Counsel David O. Fisher.
Read the full brief: AAI and COSAL Amicus Brief in Trump vs. Slaughter
