Staying away from Precedent: The Supreme Court’s Stay in Trump v. Slaughter and the Case for Statutory Removal Protections

The U.S. Supreme Court’s recent decision to grant an application for stay requested by the Trump administration in Trump v Slaughter, alongside various other pending removal cases, merits an examination of the history and constitutionality of statutory removal protections. These protections refer to rules put in place to govern the removal of federal officers. Statutory removal protections are a point of contention because some argue that they infringe upon the rights of the executive power in defiance of the U.S. constitution. Trump v. Slaughter in particular deals with the removal of commissioner Rebecca Slaughter from the Federal Trade Commission (FTC). [1] It has been alleged that President Donald Trump did not cite a “for cause” reason for her firing, or, in other words, an acceptable reason as defined by the governing statute of the agency. At the district level, Slaughter’s removal was deemed unlawful, and her reinstatement was ordered, and the Trump administration then unsuccessfully applied for a stay at the appeals level. On September 22, 2025, the Supreme Court granted the stay, meaning that Slaughter will remain fired as the case proceeds and the court decides if the President’s power is being unconstitutionally infringed upon by statutory removal protections. Through an understanding of the scope of executive and legislative power and an examination of precedent established by Humphrey’s Executor v. United States (1935) and Seila Law LLC v. Consumer Financial Protection Bureau (2020) it can be argued that Commissioner Slaughter’s removal was unlawful because removal protections are constitutional. Additionally, a consideration of the standards for granting stays brings into question the court’s decision to stay the lower court’s orders. 

It is important to evaluate the merit of Trump v. Slaughter prior to a final judgment from the Supreme Court because the likelihood of success is one of the factors that is used when determining whether to grant a stay. In a 2024 note, the Harvard Law Review provides a standard for how the Court decides stays. [2] There are three qualities they take into account: whether they are likely to hear the case or grant it certiorari, if there is a “fair prospect” that the applicant will succeed with their claim, and if there is a likelihood that letting the lower court’s decision stand will cause harm beyond what can be amended. An examination of the prospect of success for the federal government’s case through an understanding of the constitutional and historical precedent for statutory removal protections can be used to evaluate the Supreme Court’s decision to stay the lower court’s orders and the implications for the balance of powers. 

To understand what infringes upon executive power, the scope of the presidential power must be established. Article II of the U.S. Constitution establishes the President as the holder of executive power and details what the President can do with such power. Relevant in this case is section 2. It establishes that the president “with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States,” providing the basis for presidential appointment for federal agency officers. [3] The scope of presidential appointments was further established in 1926 with the decision in Myers v. United States. [4] The case argued whether an 1876 law that required the President to receive consent from the Senate to remove postmasters was unconstitutional. The court found the law to be unconstitutional by determining the intent behind presidential appointment power using the legislative history of the First Congress. The court found that the President has the sole power to remove appointed officials. Article II of the U.S. Constitution and Myers v. United States provides the President with a considerable amount of power in appointing federal officials.

However, the conclusion reached in Myers is in competition with the power granted to the legislative branch in Article I of the Constitution. Article 1, Section 8, Clause 18 grants the legislative branch the power to enact any laws needed for all powers granted by the constitution to be executed, also known as the Necessary and Proper Clause. [5] Under this clause, for example, Congress has created multiple agencies, such as the FTC, to carry out various responsibilities and has determined their structure in a way that will best serve the agencies in carrying out their responsibilities without bias. This includes staggered terms and a bipartisan multi-member body that makes the removal protections incorporated in the governing statutes of these agencies a way of maintaining this balanced and unbiased structure. Given that this clause grants the legislative branch illimitable power within the realm of what's necessary and proper, the creation and structure of these federal agencies is constitutionally founded. Whereas the sole presidential power of removal is read into the constitution in Myers because Article 2 only explicitly grants the president the power to appoint. 

Furthermore, the position of postmaster serves a purely executive function, unlike that of FTC commissioners, which becomes an important distinction when considering the power granted to the president by Myers. This distinction is made in Humphrey’s Executor v. United States (1935), which provides a particularly relevant affirmation of the limited scope of presidential power of removal. [6] The case argued whether the “for cause” removal section of the Federal Trade Commission Act violated the President’s power to remove officials. The Federal Trade Commission Act established that “any Commissioner may be removed by the President for inefficiency, neglect of duty, or malfeasance in office.” [7] This statutory removal protection was called into question when President Franklin D. Roosevelt fired FTC Commissioner William Humphrey over policy differences. The Court found that the FTC Act was constitutional because the FTC has a “predominantly quasi-judicial and quasi-legislative” function. [8] Since the work of the FTC commissioners is not merely an extension of the executive power, the President does not have the same “illimitable power of removal” and therefore Commissioner Humphrey was found to be unjustifiably fired. [9] 

Humphrey’s Executor is an important precedent for Trump v. Slaughter as Slaughter and Humphrey occupied the same positions as FTC Commissioners. They were both removed by their respective United States presidents for policy differences, as Commissioner Slaughter was told “Your continued service on the FTC is inconsistent with my Administration’s priorities,” in a March correspondence sent by the Deputy Director of the White House Office of Presidential Personnel in which she was dismissed by President Trump. [10] The similarities in the facts of Humphrey and Slaughter should indicate a similar conclusion for both. As such, as this case progresses at the Supreme Court level, based on precedent established in Humphrey, the removal of Commissioner Slaughter should be found unconstitutional, and the court will then have to consider what remedies it can offer in regard to her changing employment status throughout the progress of this case, in particular her unemployment after the September stay. 

More recent case law also supports the conclusions in Humphrey’s Executor about “for cause” removal protections for officials that fall under “quasi-judicial and quasi-legislative” agencies instead of executive agencies. Seila Law LLC v. Consumer Financial Protection Bureau, decided in 2020, found that the singular director only removable “for cause” of the Consumer Financial Protection Bureau is a violation of the separation of powers. [11] In making their decision, the court reaffirmed “for cause” removal protections for agencies that are directed by a balanced group of individuals that are appointed in staggered terms. This highlights that what threatens the balance of power is having a singular person with power that is difficult to remove, not the use of removal protections for multi-member boards. The power of the legislative branch under Article 1, Section 8 of the Constitution, is preserved in this decision as it allows for the legislative branch to balance the interests of carrying out the constitution and maintaining a balance of power. The Federal Trade Commission falls under the category of multi-member boards and, as such, Commissioner Slaughter has statutory removal protections that should bar President Trump from removing her for any reason other than the three violations of duty (“inefficiency, neglect of duty, or malfeasance in office”). [12] 

Given the precedent of Humphrey’s Executive and Seila Law, it is difficult to determine that there is a “fair prospect”, as necessitated to grant a stay, that the government will succeed in Trump v. Slaughter. To have a “fair prospect”, Humphrey must first be overturned. This would require that a decision be reached that positions that extend beyond executive function are not exempt from the removal power granted to presidents in Myers. The presumption that strong relevant precedent will be overturned when granting stays creates a slippery slope where any claimant can have a “fair prospect”. This endangers the importance of precedent that our legal system relies on. Additionally, a default to the third quality for stays, the likelihood that letting the lower court’s decision stand will cause harm, also raises questions about how to standardize and approach such cases. There is currently no standardized method to calculate the likelihood of harm, offering the Supreme Court no clear approach to granting stays taking away from the standard predictability that a fair justice system relies on. 

The increasing use of the “shadow docket” or emergency docket by the Supreme Court, which includes decisions on emergency relief such as the stay in Slaughter, also endangers our notion of a fair justice system. In recent years, the court has used the shadow docket as a method of granting preliminary relief, typically in favor of the federal administration as seen in this case and Trump V. CASA Inc. (2025). The court issued a preliminary decision on universal injunctions in CASA, declaring them beyond the equitable authority held by courts. [13] Effectively forcing those seeking to protect themselves and all others from the birthright citizenship executive order issued by President Trump to seek other methods of achieving wide relief as the case proceeded. In both Slaughter and CASA, the court did not examine the constitutionality of the federal administration's actions and instead issued orders that favor the federal government without oral argument and on a shortened timeline due to the nature of the emergency docket. This, paired with the unstandardized metrics for granting stays, as illustrated in the granting of a stay in Slaughter, has the potential to destabilize the balance of power and protections for individuals against government overreach.

Edited by Ashley Zhou

[1] Trump V. Slaughter, 606 U. S. ____ (2025).

[2] “Halting Administrative Action in the Supreme Court” Harvard Law Review 137, no. 7 (2024): 5.

[3] U.S. Const. art. II, § 2, cl. 2.

[4] Myers v. United States, 272 U.S. 52 (1926).

[5] U.S. Const. art. I, § 8, cl. 18.

[6] Humphrey's Executor v. United States, 295 U.S. 602 (1935).

[7] Federal Trade Commission Act, 15 U.S.C. § 41.

[8] Humphrey's Executor v. United States, 295 U.S. 602 (1935).

[9] Humphrey's Executor v. United States, 295 U.S. 602 (1935).

[10] Trump v. Slaughter, No.25A264, App. for Stay. at 8 (U.S. Sept. 4, 2025).

[11] Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. ___ (2020).

[12] Federal Trade Commission Act, 15 U.S.C. § 41.

[13] Trump V. CASA Inc., No.24A884, slip op. at 2 (2025).