In memoriam: Stare Decisis
On September 22, the Supreme Court allowed President Donald Trump to do what nearly a century of precedent forbids: fire a Federal Trade Commissioner without cause.[1]
In March 2025, Trump removed Rebecca Slaughter, a Biden-appointed FTC commissioner, despite the “for-cause” protections established in the Federal Trade Commission Act and upheld in the 1935 case Humphrey’s Executor v. United States.[2] A federal district court ordered her reinstatement, and the circuit court affirmed.[3]
The Supreme Court stepped in, overturning the injunction that reinstated Commissioner Slaughter and granting review on whether to overrule Humphrey’s Executor. By treating the 90-year-old precedent as already dead, the justices allowed an unlawful removal to stand immediately. That choice does more than unsettle agency independence. It unmoors the very foundation of the rule of law.
Quick Primer on Humphrey’s Executor
Humphrey’s Executor arose from a simple but explosive question: Can a president fire a Federal Trade Commissioner without cause?
Since its inception, the Federal Trade Commission Act has provided that commissioners can only be removed for “inefficiency, neglect of duty, or malfeasance.”[4]
In 1925, President Herbert Hoover appointed William E. Humphrey to a fixed seven-year term. After taking office in 1933, President Franklin Roosevelt asked for Humphrey’s resignation, seeking “personnel of his own selection.” When Humphrey refused, Roosevelt removed him. After Humphrey’s death the following year, his estate sued to recover the salary he would have earned had he remained in office.
The Supreme Court unanimously held the removal unlawful, reasoning that while purely executive officers—like postmasters or cabinet secretaries—can be removed at will, an FTC commissioner cannot.[5] Commissioners act “quasi-legislatively and quasi-judicially,” filling in statutory details and sometimes functioning as an arm of Congress or the courts.
“Such a body cannot in any proper sense be characterized as an arm or an eye of the executive,” the Court explained.[6] Its duties “must be free from executive control.”[7] And if independence means anything, Congress must be able to guarantee it by fixing a term and limiting removal to cause. Otherwise, “one who holds his office only during the pleasure of another cannot be depended upon to maintain an attitude of independence.”[8]
The Hollowing Out of Humphrey’s Executor
Humphrey’s Executor established the constitutional foundation for independent commissions, a bright-line rule that structured the modern administrative state for nearly a century. In 2020, however, in Seila Law v. Consumer Financial Protection Bureau,[9] the Court adopted a more expansive vision of presidential power, recasting Humphrey’s Executor as a narrow exception to the president’s general removal authority. The Court upheld for-cause protections only for the kind of multimember, bipartisan commissions it believed the FTC represented in 1935—expert bodies, insulated from politics, and exercising little if any executive authority. It struck down protections for the CFPB’s single Director, emphasizing that she wielded sweeping rulemaking and enforcement powers quintessentially executive in nature.
Why Independent Agencies Matter
That narrowing matters because it strikes at the very reason Congress designed independent agencies in the first place. Independent agencies are Congress’s answer to the hardest problems of modern governance. They regulate markets, protect workers, and police fraud in ways legislators cannot do themselves.
Agencies like the FTC, Securities and Exchange Commission (SEC), National Labor Relations Board (NLRB), Consumer Financial Protection Bureau (CFPB), and Federal Communications Commission (FCC) write detailed rules, investigate violations, and enforce the law. Their structure is deliberate: multi-member commissions, bipartisan balance, and long, staggered terms. That design prevents wholesale turnover with each election and gives agencies the expertise and stability to act in the public interest.
Strip away that independence, and government becomes political spoils. Every administration brings wholesale turnover and policy whiplash, leaving critical protections—from consumer safety to labor rights to market integrity—at the mercy of partisan politics.
The Shadow Docket Burial
Seila Law narrowed the once bright-line rule in Humphrey’s Executor, yet it neither overruled the decision nor disturbed the FTC Commissioner’s removal protections.
The Court will hear arguments in December on whether to formally overrule Humphrey’s Executor. But in practice, the precedent is already moribund. On September 22, the Court, without argument or briefing, allowed President Trump’s removal of Commissioner Slaughter to take immediate effect—even though Humphrey’s Executor still says such removals are unlawful. The majority gave no reasoning, but the message was clear: because the justices are likely to overturn the precedent later, it can be disregarded now.
The majority went further, ordering the parties to brief whether courts may ever prevent a person’s removal from public office. A ruling in the negative could drastically curtail the courts’ ability to check unlawful presidential removals.
This tactic is not new. In 2021, the Supreme Court let Texas’s abortion ban, S.B. 8, take effect even while Roe v. Wade remained binding law—an act that openly defied federal supremacy.[10] Now it goes further still, hollowing out separation of powers by sanctioning presidential defiance of Congress and the Court.
As Justice Kagan, joined by Justices Sotomayor and Jackson, warned in dissent: “Our emergency docket should never be used, as it has been this year, to permit what our own precedent bars.”[11]
When Precedent Is Optional, Rights Are Too
Agree or disagree with Humphrey’s Executor, the way the Court is discarding it is a five-alarm fire for the rule of law. Stare decisis—long the backbone of American jurisprudence—finds itself interred in the Court’s shadow docket. The damage extends beyond doctrine: unsigned orders erase precedent while eroding the balance of powers and Congress’s agency independence.
The immediate concern for businesses is regulatory stability. Compliance must be nimble, with risk assessments anticipating political turnover, and organizations must be prepared to adapt quickly to shifting enforcement priorities. The deeper concern, however, is legal stability itself. If the Court is willing to act first and justify later, uncertainty spreads—not only in compliance and enforcement, but across civil rights, contract expectations, and the basic predictability of law.
This concern is not theoretical. In July 2025, the Court was asked to reconsider Obergefell v. Hodges,[12] the decision guaranteeing marriage equality nationwide.[13] That case will proceed through the regular docket. But Humphrey’s Executor shows the troubling reality: this Court does not wait to overrule precedent before acting as if it were already gone.
Aranda Stathers is an attorney at Brown, Goldstein & Levy, a law firm based in Baltimore, Maryland, with an office in Washington, D.C. Aranda’s practice spans civil rights, criminal defense and appellate litigation. She has written extensively on the impact of federal policy changes and Supreme Court rulings on the rule of law in the United States. Learn more about Aranda’s practice, and read more of her blogs, here.
[1] Trump v. Slaughter, No. 25-332 (U.S. Sept. 22, 2025).
[2] 295 U.S. 602 (1935).
[3] Slaughter v. Trump, No. 25-5261 (D.C. Cir. Sept. 2, 2025).
[4] 15 U.S.C. § 41.
[5] 295 U.S. at 627 (citing Myers v. United States, 272 U.S. 52 (1926) (holding that the president has unrestricted removal authority over purely executive officers)).
[6] Id. at 628.
[7] Id.
[8] Id. at 629.
[9] 591 U.S. 197 (2020).
[10] See Whole Woman’s Health v. Jackson, No. 21-463 (U.S. Sept. 1, 2021); Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022).
[11] Trump v. Slaughter, No. 25-332 at 3 (U.S. Sept. 22, 2025) (Kagan, J., dissenting).
[12] 576 U.S. 644 (2015).
[13] See Davis v. Ermold, Pet. for Cert. (U.S. docketed Aug. 1, 2025).
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