Trump v. Slaughter Re: Order Issued September 22, 2025
In yet another consequential and contentious use of the emergency docket, the Supreme Court granted President Donald Trump’s application to stay a lower court order that blocked him from immediately removing Rebecca Kelly Slaughter, the Democratically-appointed Federal Trade Commissioner, without cause, despite explicit statutory protection under 15 U.S.C Section 41. The 1914 act established the F.T.C. and made clear that the president could only fire an F.T.C. chair due to “inefficiency, neglect of duty, or malfeasance in office.” In other words, the president can only remove an F.T.C. chair for cause, something Trump did not do.
The Supreme Court’s preliminary ruling in Trump v. Slaughter, which was issued on September 22, 2025, is not the only point of controversy; the Court also took the extraordinary step of granting certiorari before judgment. While the lower courts did rule preliminarily in Slaughter, they have not made a full ruling on the merits. And typically, the Supreme Court, after reviewing the lower courts’ preliminary rulings, will remand (send a case back down) to the lower courts to be considered on its merits. The Supreme Court does this because it is not typically a court of first impression. But, in this case, the Supreme Court did the exact opposite. After reviewing the lower courts’ preliminary rulings, the Court decided not to remand; instead, bypassing the normal appellate process, the Court granted certiorari and set oral arguments for December.
Not only is this kind of procedure unusual for a case before the Supreme Court, it is especially unusual for a case as significant and prominent as Slaughter, which could likely overturn Humphrey’s Executor v. United States (1935), a landmark case that established the independence of certain regulatory executive agencies such as the Federal Trade Commissioner. In Humphrey’s, the Supreme Court unanimously ruled that the Constitution never gave the president “illimitable power of removal.” Moreover, the Court reasoned that the F.T.C. needed to be insulated from the president because it had been created by Congress to perform “quasi-legislative” and “quasi-judicial” functions. Thus, the Court held that the “for cause” firing limitation, as established in 1914, was constitutional.
Despite statutory protection and Humphrey’s Executor, however, Slaughter was fired by Trump without cause on March 18, 2025. In response, Slaughter quickly sued Trump and won in the U.S. District Court for the District of Columbia. Specifically, on July 17, the District Court instructed Trump to reinstate Slaughter to her position at the F.T.C. and enjoined him from interfering with her duties in any other way. As a result, Trump sought an emergency stay of that court order, which the District Court denied. Trump appealed, and, on September 2, the U.S. Court of Appeals for the D.C. Circuit denied his emergency stay as well. In all these decisions, the lower courts relied on Humphrey’s.
Trump then appealed to the Supreme Court, asking it to stay the lower court order and grant certiorari before judgment. And, as mentioned, a majority of the Court accepted both these applications, undermining Humphrey’s effectively handing Trump broader presidential authority to remove the heads of independent agencies.
Justice Kagan, joined by Justices Sotomayor and Jackson, wrote a two-page dissent (while the majority’s order had no written explanation). In the dissent, Justice Kagan called the facts of Slaughter “identical” to Humphrey’s, making clear that the majority indeed intends to overturn Humphrey’s despite some theorizing that there is a way for the Supreme Court to side with Trump in Slaughter while still finding a way to save Humphrey’s. Justice Kagan made clear that this is simply not possible.
Justice Kagan added that the Court’s preliminary decision “requires reversing the rule stated in Humphrey’s” and “entails overriding rather than accepting Congress’s judgment about agency design.” Justice Kagan concluded that, because the majority’s ruling grants President Trump “the unlimited removal power Congress denied him,” she “respectfully” dissents.
Importantly, Justice Kagan also criticized the majority’s use of the emergency docket more generally: “Our emergency docket should never be used, as it has been this year, to permit what our own precedent bars. Still more, it should not be used, as it also has been, to transfer government authority from Congress to the President, and thus to reshape the Nation’s separation of powers.” Indeed, there is widespread criticism of the Supreme Court’s use of its emergency docket — commonly called the “shadow docket,” as University of Chicago’s William Baude coined in 2015 — to hand President Trump many preliminary victories early in his second term. Specifically, the emergency docket, in its current form, is criticized because it rushes through a case to issue an unsigned decision with little or no explanation and far-reaching preliminary effects. To make matters worse, the emergency docket is now being used more and more in high-stakes cases which demand lots of time to work through.
Despite its criticisms, the emergency docket is alive and well. All the more, it was employed by the Court to begin the majority’s dismantling of a near-century of* Humphrey’s*. Of course, despite Justice Kagan expressing that the majority’s intent to overturn Humphrey’s is clear already, it is hard to fully tell given the order was unexplained. But in just a few weeks, during oral arguments, we will get a fuller picture of this case — of how the majority plans to rule, if it is poised to overturn Humphrey’s, and why it sees the removal without cause of an independent executive official within the president’s constitutional boundaries. Until then, though, we will just have to wait and see.