Trump v. Slaughter: Our Coverage Before the Decision

On June 29, 2026, the Supreme Court decided Trump v. Slaughter. It held that the FTC’s for-cause removal protection is unconstitutional and overruled Humphrey’s Executor by name. Our full breakdown of the decision is in Trump v. Slaughter Explained.

We didn’t start covering this case when it was decided. In December 2025, right after the Court heard oral argument, we recorded a two-part series: one episode on how the case got to the Court, and one on what happened at argument and where we thought the Court was headed. This page collects both transcripts.

A note on reading these: These episodes describe the law as it stood in December 2025. Some of what we discuss, including the protection Humphrey’s Executor gave independent agencies, is no longer good law. We’ve left the transcripts as recorded, lightly edited for readability. The point is to show what was at stake, and what we expected, before anyone knew the outcome.

Posted December 9, 2025, before the Supreme Court ruled.

When we recorded this episode, Rebecca Slaughter had been fired from the FTC without cause, and the Supreme Court had agreed to decide whether that firing was constitutional. This episode lays the groundwork. It covers what “for cause” removal means, where the constitutional fight over removal came from, and how Myers v. United States and Humphrey’s Executor divided the territory between officers the president can fire at will and commissioners Congress can protect.

What happened next: The framework we explain here is the one the Court took apart. Slaughter overruled Humphrey’s outright and eliminated the “quasi-legislative, quasi-judicial” category it rested on, so that, in the Court’s words, there are “no ifs, ands, or quasis” about executive power.  

Part 1 Rough Transcript - Editor’s note: This transcript has been lightly edited for readability. Bracketed notes correct factual details; the spoken content is otherwise unchanged.

Gwen: Hello, and welcome to Administrative Remedies, because you can’t fix what you don’t understand. Brought to you in part by the University of Tulsa College of Law. I’m Gwendolyn Savitz, an associate professor here at TU and the associate dean of research and intellectual life.

Marc: And I’m Marc Roark. I’m the dean of the College of Law.

Gwen: We’ll be breaking down complex doctrines with real-life analogies and examples to demystify the world of administrative law for everyone trying to understand how government actually works.

Marc: Agencies are the main way the federal government gets things done. It’s not through Congress, for reasons we’ll be addressing over the course of this series.

Gwen: We spent two episodes explaining why independent agencies exist and how they work. Now we’re going to talk about whether the Court will decide they are still constitutional.

Marc: That’s a pretty big question.

Gwen: It is. This case really isn’t just about one commissioner at one agency. At stake are dozens of agencies — the Fed, the FCC, the SEC, the NLRB — and whether any of them can continue to exist in their current form.

Marc: So what happened to get us here?

Gwen: On Inauguration Day, Trump fires the FTC commissioner, Rebecca Slaughter. He didn’t attempt to say there was a cause. It was just, nope, you’re out. [Editor’s note: Slaughter was removed in March 2025, not on Inauguration Day.]

Marc: But last episode, we talked about Humphrey’s Executor, the 1935 case that said Congress can protect FTC commissioners from exactly that kind of removal.

Gwen: Yeah. Isn’t that interesting? This is the exact agency that was at issue in Humphrey’s Executor. And yet here we are. For 90 years, this precedent stood. It has formed one of the backbones of the administrative state. Presidents have grumbled about it, but it’s been the law. Slaughter sued, saying that he didn’t have the right to fire her. And under the statute, he doesn’t have the right to fire her.

Marc: So the Court is deciding whether Humphrey’s has been right for 90 years, or whether we’ve been living under an incorrect premise of administrative power.

Gwen: Yes. Remember that Odysseus analogy from episode six? That’s where Congress ties the president to the mast so he can’t steer toward the sirens of short-term politics. But Trump’s argument here is that Congress is just not allowed to tie Odysseus to the mast. The Constitution forbids Congress from restraining the president in any way. And if he wins, all the ropes come off — potentially not just for the FTC, but for every independent agency.

Marc: All those agencies that we talked about — the architecture, the fixed terms, the bipartisan requirements, the for-cause removal protections — all of that would change.

Gwen: Yes, all of it. We’re going to talk about both sides of the argument and then what the stakes are, before we talk about what actually happened at oral argument. So let’s start with the basic facts.

Marc: Who is Rebecca Kelly Slaughter?

Gwen: She was an FTC commissioner. She was appointed by Trump in 2018. She was confirmed by the Senate and was serving a seven-year term that wasn’t set to expire until 2029.

Marc: Let’s just say that again and remind ourselves. Trump appointed her during his first term in office, back in 2018.

Gwen: He did. And he was doing that because, as we talked about when we covered independent agencies, the FTC is one where no more than three of the five commissioners can be from the same party. So when the Democratic spot opened, he had to appoint a Democrat, and she is who he picked to fill that seat.

Marc: So the president can’t just stack the commission with his own party.

Gwen: Right. He was following the requirements at that point. But now he’s seeking to fire her because he would rather have an FTC aligned with his own party — without any claim of cause. He’s trying to set this up about as squarely as Humphrey’s itself was set up. He fired both of the Democratic commissioners. She’s the one challenging it. The district court said she needed to be reinstated, which made a lot of sense. Humphrey’s Executor is still binding precedent until it’s overturned. So the court said the government was unlikely to win under that binding law. And then the Supreme Court stepped in.

Marc: Yes. They granted certiorari before judgment, so they took the case before it had even finished at the appeals court. That’s highly unusual.

Gwen: It is. It signals that the Court thinks this is urgent and important, and they fast-tracked it. I’ll also note it probably means they didn’t want the appeals court wasting time on it, because that was clearly not a precedent that was going to stand.

Marc: OK, let’s be charitable readers for a moment. What is Trump’s best argument for why Humphrey’s was wrong?

Gwen: He is pulling all of this from Article II of the Constitution. Can you read the Vesting Clause?

Marc: “The executive Power shall be vested in a President of the United States of America.”

Gwen: Notice what it says there. The executive power — not some of it, all of it. And it’s vested in one person, the president.

Marc: So the argument is that if something is executive power, only the president can exercise it.

Gwen: It goes beyond that. It’s that the president must be able to control anybody who’s exercising executive power. Otherwise, it isn’t fully vested in him. Here’s how the government’s brief puts it.

Marc: “The President cannot take care that the laws be faithfully executed if he cannot oversee the officials responsible for executing them, and he cannot effectively oversee those officials without the power to remove them.”

Gwen: They are relying on the unitary executive theory. There’s one executive, that’s the president, and the president needs complete control. If you can’t fire somebody, you can’t control them.

Marc: So the president has to control everything, because otherwise the power isn’t really vested in him.

Gwen: And here they’re relying on Myers. They’re taking it and running as far as they possibly can with it. So let’s read a little bit of Myers.

Marc: That was Taft’s opinion in Myers, correct?

Gwen: It was. Chief Justice Taft, the former president.

Marc: “The power of removal is incident to the power of appointment, not to the power of advising and consenting to appointment, and when the grant of the executive power is enforced by the express mandate to take care that the laws be faithfully executed, it emphasizes the necessity for including within the executive power as conferred the exclusive power of removal.”

Gwen: He’s using a lot of words there to say that removal is inherent in executive power. If the president appoints somebody to execute the laws, the president must be able to remove them.

Marc: But didn’t Humphrey’s Executor come after Myers and limit it?

Gwen: It did indeed. And Trump’s argument is that Humphrey’s was wrongly decided from the start — despite the fact that four of the justices from Myers were still on the Court for Humphrey’s and joined the majority. Here’s how they argue it. They say Humphrey’s invented a distinction that doesn’t really exist between purely executive functions and quasi-legislative and quasi-judicial functions — the idea that the FTC somehow isn’t really executive because it does rulemaking and adjudication.

Marc: Right. They’re saying that distinction is incoherent, and it certainly is an extraordinarily weak part of the opinion.

Gwen: So there’s no such thing as a quasi-legislative or quasi-judicial agency?

Marc: That is what they’re arguing. The FTC exercises executive power when it investigates violations, when it brings enforcement actions, when it seeks penalties against private parties. It is executing the laws. That is the definition of executive power. There’s no quasi anything going on here.

Gwen: Next, they argue this isn’t even close. Do you remember — it’s Seila Law, but I want to say “Celia.”

Marc: Yeah. It seems like there should be an extra vowel at the end.

Gwen: It’s really hard. They were butchering it at oral argument too. So, Seila Law, from last episode — the CFPB case, where the Court said a single director with for-cause protection was unconstitutional.

Marc: Yes. Trump’s lawyers say Seila had already rejected the reasoning of Humphrey’s Executor, and the only question left was when the Court would finally admit it and overrule it.

Gwen: But what about stare decisis? Ninety years of precedent has to count for something, right?

Marc: In the past, it certainly would have. But Chevron was also a critical precedent that had been in place for decades. Here’s what the government says in its brief.

Gwen: “Stare decisis does not require this Court to adhere to a decision that was wrong the day it was decided and has only become more obviously wrong over time. Humphrey’s Executor rested on a distinction this Court has repeatedly questioned, limited, and declined to extend. The time has come to overrule it.”

Marc: What they’re saying is: you overruled Chevron after 40 years. Humphrey’s is older, sure, but it’s also super wrong. Let’s think about the other side. What does Slaughter’s side say?

Gwen: They start with history, but they go much further back than we did when we talked about independent agencies. We generally think of them as starting in the late 1800s. Slaughter’s side argues this really goes back to the founding. The founders created independent bodies — not just administrative authority like we read about with Alexander Hamilton and the Treasury. They weren’t modern regulatory agencies, but they were multimember bodies with fixed terms and insulation from presidential removal. In 1790, Congress created the Sinking Fund Commission to manage the national debt. It consisted of the vice president, the chief justice, and three cabinet officers.

Marc: So this was a five-person group where the president couldn’t remove every member at will — although he would have had control over the cabinet officers. But seriously, the very first Congress did that.

Gwen: Yes, they did. And that Congress included a lot of framers. So if the unitary executive theory is correct, why would they create a commission where the president couldn’t fire all the members?

Marc: Were there others?

Gwen: Yes. Starting in 1782, Congress created a series of commissioners to settle claims arising from the Revolutionary War. These commissioners also served fixed terms, exercised significant discretion, and operated independently. The framers were not unfamiliar with this idea.

Marc: So the argument is that the founders themselves used multimember bodies with independence protections when they thought certain functions required them. But let’s be clear: that’s nowhere in the constitutional text. The Vesting Clause does seem pretty clear.

Gwen: It certainly vests executive power in the president, but it doesn’t mention removal at all, other than impeachment. And we talked about how that isn’t an oversight. Last episode, we covered the Decision of 1789, when the First Congress debated the removal power — and they couldn’t agree. So the idea that from the very beginning they obviously meant the president to have exclusive removal authority doesn’t make sense. They left it to Congress to structure the executive branch as circumstances required.

Marc: What about the multimember structure specifically? Trump’s lawyers seem to think it doesn’t matter.

Gwen: That point is pretty critical. Seila Law turned heavily on the fact that the CFPB had a single director. And Roberts, writing for the Court, emphasized that multimember commissions were different. Let’s go back to this excerpt.

Marc: “The CFPB’s single-Director structure contravenes this carefully calibrated system by vesting significant governmental power in the hands of a single individual accountable to no one.” And: “With no colleagues to persuade, and no boss or electorate looking over her shoulder, the Director may dictate and enforce policy.”

Gwen: The Court there was worried about one person with unchecked power. But the FTC has five commissioners. Power is diffuse. No single person can dictate policy. And the bipartisan requirement means the minority party always has some representation.

Marc: So the structure itself is the check.

Gwen: Exactly. Thirty-three former commissioners from various agencies weighed in on the case, too. Their point was that multimember boards foster deliberation. They require consensus building. They prevent arbitrary decision-making. No commissioner can act unilaterally. It really is a fundamentally different structure from a single director.

Marc: And then there’s stare decisis. Ninety years is a lot.

Gwen: Congress has relied on this for decades. It has created dozens of independent agencies since 1935, with the understanding that for-cause removal was constitutional. The SEC, the Federal Reserve Board, the NLRB, the FCC, the CFTC, the NRC, the FEC — all structured in reliance on Humphrey’s. Overruling it now wouldn’t just change a constitutional quirk. It would destabilize the entire framework of federal regulation.

Marc: All those agencies we’ve talked about over the past two episodes depend on Humphrey’s being correct. That’s what Sotomayor seemed to be getting at when she challenged the Solicitor General and said, essentially, that he was destabilizing the basic structure of government.

Gwen: Yes. That is what’s really on the plate here.

Marc: Something I’ve been wondering: does every agency need the same level of independence? Or is the Fed different from the FTC, which might be different from the NLRB?

Gwen: People are trying to figure out how to save as many independent agencies as possible, because it’s clear a lot of them are headed out. These approaches use some sort of balancing test, weighing the president’s interest in control against Congress’s reasons for insulating particular functions.

Marc: What would that look like?

Gwen: Think of it like a hospital. You treat a trauma case differently from a dermatology patient. Agencies do lots of different things, so it’s possible the Constitution treats different things differently. These proposals identify three tiers. First, agencies that primarily do adjudication — deciding individual cases. The Merit Systems Protection Board, for example, or the NLRB when it’s resolving a labor dispute.

Marc: Those are court-like functions.

Gwen: Yes, they’re acting like a court, and we’ve always understood that judicial independence is essential. We don’t want a judge who can be fired for ruling against the wrong party. The Merit Systems Protection Board is a neutral adjudicator of federal employment disputes. Its entire function depends on the perception and the reality of impartiality. If its members can be removed for deciding cases in a way the president dislikes, they can’t do that job.

Marc: That would mean the president could fire somebody, even improperly, and then when that person challenged it, the Merit Systems Protection Board would side with the president — because otherwise its members would lose their jobs.

Gwen: The next tier is agencies that regulate markets, where credibility and stability matter — like the Fed. We talked in episode six about how the Fed needs to be insulated from election-year pressure. And the justices themselves really want to protect the Fed. I would be shocked if the Fed were actually destroyed by this. They went out of their way to say they weren’t addressing the Federal Reserve. It may be a fallback position, but they will carve out the Fed.

Marc: Is it too cynical to suggest that one reason the justices are so interested in protecting the Fed is that they have 401(k)s and investments in the stock market?

Gwen: That would certainly be something somebody could say.

Marc: What about the third tier?

Gwen: The third tier is policymaking agencies — the FTC when it’s doing rulemaking, or the FCC when it’s setting telecommunications policy. The argument is that these functions warrant less independence because they look more like traditional executive action.

Marc: So the Court would basically be drawing lines. Some agencies keep their independence protections, and others don’t.

Gwen: It’s possible. But that creates issues of its own. The FTC does rulemaking and adjudication. So do the SEC and the NLRB. Most agencies do both.

Marc: So how do you separate it? You’d need different removal standards for the same person doing different things.

Gwen: Right. A lot of people argue this really is all or nothing. Either Humphrey’s is right and we can have these multimember boards, or Humphrey’s is wrong and the president controls everybody.

Marc: OK, let’s get to brass tacks. What happens if Trump wins?

Gwen: If Trump wins because the Court completely overrules Humphrey’s Executor, he will have at-will removal power over every commissioner on every multimember independent agency.

Marc: Immediately?

Gwen: Immediately. The for-cause removal restrictions would be unconstitutional. The president would go through and fire everybody who wasn’t aligned with him politically.

Marc: What about the Federal Reserve?

Gwen: That’s where we keep hitting this problem. The Court could theoretically issue a broad ruling that these removal restrictions are unconstitutional, including at the Fed, but that seems really unlikely. They will almost certainly carve out some sort of exception so the Fed survives.

Marc: What would this mean practically?

Gwen: In Seila Law, when the Court held the removal restriction unconstitutional, it solved the problem by striking the restriction. Instead of an independent agency, the CFPB became an executive agency under the president’s full control. That is almost certainly what they would do here, too.

Marc: This is basically the Chevron flip-flopping we talked about before, except now actual human lives and mortgage rates are on the line.

Gwen: Yes. Chevron was about who gets to say what a statute means. This is about who controls the people making those decisions in the first place. And under Chevron, to really earn deference, agencies generally had to go through notice and comment, which took a long time. If you can fire commissioners and replace them overnight, you can shift policy instantly. And we would expect presidents to come in and clean house.

Marc: You’d expect policy to start swinging wildly if the president has full control over these agencies. So what if Slaughter wins? Justice Kavanaugh raised the question of whether Slaughter could just continue to receive her salary but be replaced on the commission.

Gwen: That was the second question the Court took up, and the one they didn’t really get to at argument, which suggests she likely won’t get her position back. But that remedy would create incredible problems of its own. It’s essentially a back door to removal: the president could improperly fire everybody and just pay them off.

Marc: That seems like a way for the president to get what he wants, just at taxpayer expense.

Gwen: Essentially, it would kick the can down the road again. Even if Slaughter wins, this is not the end of the question.

Marc: No — but again, I would be shocked if Slaughter wins. That doesn’t seem to be on the table. The question is just how narrowly the Court decides.

Gwen: We’re going to break this into two episodes, since these are pretty dense. In the next one, we’ll pick up with oral argument.

Marc: So that does it for today’s episode of Administrative Remedies. Thank you for joining us. If you enjoyed this episode, give us a like on Spotify, Apple Podcasts, or wherever you’re listening, and be sure to tune in next time as we continue to dive into the contours of administrative law. Because remember: you can’t fix what you don’t understand.

Posted December 9, 2025, the day after oral argument and before the Supreme Court ruled.

The Court heard more than two hours of argument in Trump v. Slaughter. In this episode we walk through the Solicitor General’s attack on Humphrey’s Executor, the justices’ questions about where the unitary executive theory stops, and the possible outcomes, from the “full Monty” to a narrower ruling limited to the modern FTC.

What happened next: We were right that the government would win, and wrong about how. We expected the Court to take the narrow path and say only that today’s FTC isn’t the agency Humphrey’s described. We thought it would avoid a broad rule because that rule would require an awkward exception for the Federal Reserve. Instead, the Court took option one, the full Monty. It then carved out the Fed anyway, on historical grounds, in the companion case Trump v. Cook. That’s the “unconstitutional, except where it would be super bad” result we said the Court would want to avoid. Justice Gorsuch’s nondelegation point from argument became his “ratchet effect” concurrence. We also guessed spring and “not the last day of the term.” The decision came June 29.

Gwen: Hello, and welcome to Administrative Remedies, because you can’t fix what you don’t understand. Brought to you in part by the University of Tulsa College of Law. I’m Gwendolyn Savitz, an associate professor here at TU and the associate dean of research and intellectual life.

Marc: And I’m Marc Roark. I’m the dean of the College of Law. We’ll be breaking down complex doctrines with real-life analogies and examples to demystify the world of administrative law for everyone trying to understand how government actually works. Agencies are the main way the federal government gets things done. It’s not through Congress, for reasons we’ll be addressing over the course of this series.

Welcome back. In the last episode, we gave the background to Trump v. Slaughter, and now we are getting into the oral argument. Let’s get deep into what happened in the courtroom.

Gwen: This argument went on for over two hours. It was long. People had very big feelings about it. The Solicitor General started by calling Humphrey’s Executor a “decaying husk with bold and particularly dangerous pretensions.”

Marc: A decaying husk. That’s not usually the way you describe precedent you merely want to distinguish. This is how you describe something you want dead and buried.

Gwen: That is absolutely what he wants here. He said it was grievously wrong when it was decided, and he wants it overruled outright.

Marc: So we’re not in “respectfully, this case should be limited to its facts” territory.

Gwen: No. The Court could still go that route, but that is not what he’s pushing for. The justices also kept circling back to one question.

Marc: Which is, if you buy this idea, where does it end? Basically, the slippery slope question.

Gwen: Yes. Here it may be the slippery cliff. Kagan put it directly. She said this entire brief is built on the idea that the Vesting Clause gives all executive power to the president, and said, okay, if I accept that, it’s hard to see how you stop. He kept saying that theoretically it could be limited, that the Court didn’t need to decide that. But everybody knows what’s really on the table. Kagan tried to lay it out. She went through category after category, and in none of them did he say he didn’t think it would fall if Humphrey’s fell. That’s essentially him conceding what the real game is. There is no end point, which tells you he’s pretty confident he knows where we’re headed.

Marc: Let’s talk about the liberal justices for a second. Were the three of them all pushing in basically the same direction?

Gwen: They’re all trying to preserve functional government as we know it. That’s clearly a sinking ship at this point. And speaking of that, Sotomayor pointed to the Sinking Fund Commission and the War Claims Commission, things we’d already talked about.

Marc: This case really has brought out some — what did you call them? — big feelings. We have the Solicitor General describing Humphrey’s Executor as the decaying husk of a precedent, and Sotomayor saying that if we accept the government’s position, we’re essentially destroying the entire structure of government.

Gwen: The Court will definitely try to find some sort of middle ground, but…

Marc: We are headed into a brave new world of administrative law. Were there any examples of why that might be the case?

Gwen: You mean why this destroys all government?

Marc: Yes. Why this destroys all government.

Gwen: Part of the problem with Seila Law is that the CFPB hadn’t existed for very long. So when it switched to being an executive agency, the sky didn’t fall. It’s almost certainly not doing the kind of probing work it would have done if it had stayed independent. But the harm is something like people on the edges of poverty taking out higher-interest payday loans. It’s not obvious to everybody. Now we’re talking about massive agencies that control huge parts of the economy, and it will be catastrophic if they all become executive agencies.

Marc: What about Justice Jackson?

Gwen: She came at it from a different angle. Her question was, why does the president’s desire for control trump Congress’s judgment that some things should be handled by experts?

Marc: That’s the expertise argument we’ve been talking about over and over.

Gwen: Yes, and she made it really clear. She talked about the danger of a president coming in, firing all the scientists and doctors and economists and PhDs, and replacing them with loyalists who don’t know anything.

Marc: That’s pretty powerful given our current experience with the CDC.

Gwen: It is. But she wasn’t done. She noted that Congress establishes these agencies, funds them, and can eliminate them if it wants to. So the idea that they don’t answer to anybody didn’t really fly with her.

Marc: What was Sauer’s response?

Gwen: He said that’s the problem. If Congress can control these agencies in any way, we don’t have the true executive control the Constitution requires.

Marc: So his answer is, yes, these agencies answer to Congress, but that’s unconstitutional.

Gwen: One thing you can definitely say about the unitary executive theory is that you can be super consistent with it.

Marc: As a side note, non-Republican administrations have argued the unitary executive theory too, right?

Gwen: Yes, they have. Kagan talked about it. She’d written an article in favor of the unitary executive theory. Her point was that when people first started pushing it, we didn’t know nearly as much about the founding as we do now. Now that we know about things like the Sinking Fund, we should be much more wary of believing the founders wanted all power in the executive.

Marc: What about the other conservative justices? Were they all buying what Sauer was selling?

Gwen: There were a few divisions. Roberts seemed to be looking for a narrow path, not terribly surprisingly. His questions focused on whether the FTC of 2025 looks like the agency Humphrey’s Executor described in 1935.

Marc: Because the FTC has changed a lot?

Gwen: Yes, massively. Back then it was a much smaller body investigating trade practices. Now it brings enforcement actions seeking huge penalties, and it does rulemaking. He seemed to be asking, can we rule against Slaughter without overruling Humphrey’s, and just say that whatever Humphrey’s protected, this isn’t that FTC?

Marc: Keep the precedent technically alive, but defang it.

Gwen: That’s one way to read it. Barrett also seemed interested in narrower grounds. She asked whether the Court needed to identify exactly where the presidential removal power comes from.

Marc: Could they just not be specific?

Gwen: Right. Can we just leave it fuzzy in the Constitution? That seems like a very peculiar argument for jurists who pride themselves on originalism.

Marc: It does. There are so many interesting things coming up.

Gwen: Then Gorsuch brought up something that should sound familiar: the nondelegation doctrine. His point was that Congress has delegated huge lawmaking authority to these agencies, and the Court hasn’t really reined that in. So if these agencies are going to keep making law, shouldn’t they at least be accountable to someone the voters elected?

Marc: That’s a different flavor of concern from the other justices’.

Gwen: It is, and it gets at the problem that comes up if we move independent agencies into the executive branch. It seems likely Congress never intended to delegate that power entirely to the executive. There was an interesting moment where Sauer invoked Justice Scalia’s famous line from Morrison: “this wolf comes as a wolf.” Gorsuch said there are a lot of wolves around here. And Sauer responded that this particular wolf is Fenrir.

Marc: I’m sorry — Fenrir?

Gwen: The giant wolf from Norse mythology who devours Odin at Ragnarök.

Marc: So the Solicitor General compared independent agencies to an apocalyptic wolf god.

Gwen: He did. He was saying, yes, there are lots of wolves we’ll be taking down, but this is the biggest, baddest one, and we should go after it first.

Marc: How did Slaughter’s lawyer do?

Gwen: He made smart moves. He had clerked for two of the conservative justices, so he knew his audience. And he conceded that Seila Law, the CFPB case, was correctly decided.

Marc: That’s a pretty big concession.

Gwen: It’s a strategic one. It gives him credibility. And it’s hard to imagine anyone realistically getting up there and saying Seila was wrongly decided, because that’s definitely not the direction the Court is headed. So his line was: we’re asking the Court to adhere to all of its precedent, and the petitioners are asking you to abandon precedent after precedent after precedent.

Marc: Did that resonate?

Gwen: It would have resonated a lot more five years ago. I don’t know that it means much to this Court. But he made some practical arguments that seemed to land with some justices. He pointed out that if the government’s theory is right, every president can come in and clean house, which we’d expect them to do. Fire all the commissioners, replace them with loyalists. We’ll have constant flip-flopping.

Marc: Which is very different from the Chevron flip-flopping we’ve already talked about.

Gwen: Right. Chevron was incredibly problematic, so we needed to destabilize the administrative state to fix it. And now we need to destabilize it even more to enable even more flip-flopping. The regulatory whiplash is going to be worse.

Marc: You listened to the whole thing. Where do you think it’s headed?

Gwen: There are justices where it’s very clear where they’ll land. Kavanaugh and Alito are very clearly on the government’s side and will give it the maximum amount of authority. The three liberal justices are very clearly in favor of upholding Humphrey’s Executor. Then there are the other four: Gorsuch, Roberts, Barrett, and even Thomas. Thomas’s initial questioning didn’t tip me off that he’d be as pro-executive as our instincts suggest he will be.

The administration will win. The question is how narrow the holding will be. I think the three most conservative justices would just overturn it outright. But the overriding concern for most of them is that we cannot lose the Fed. We cannot let the president run the Fed. So the theory becomes: anything other than direct presidential control is unconstitutional, except where that would be really bad, and then we make an exception. To avoid having to say that, I think the Court will write a narrower decision. All we need to decide is whether today’s FTC is different from the FTC when Humphrey’s was decided. It is. We’re done. She can be removed. They know the logic applies to functionally every independent agency. I just don’t think they’ll say so right now.

Marc: So there’s no question the government wins. The only question is how big.

Gwen: Yes. That’s all this comes down to.

Marc: Why are you so confident?

Gwen: Start with the fact that they took the case before the D.C. Circuit had decided it. They understand that under their own precedent, the D.C. Circuit would uphold Humphrey’s, and they didn’t need to watch that happen. I think everybody knows it’s going to fall. The question is how narrow they keep the ruling.

Marc: That’s telling.

Gwen: It is. And there are other issues on the table. Some independent agencies really do perform mostly adjudicatory functions. If the president gains control over those, that’s a serious problem. There are levels of problems here, and that one is partway up the ladder.

Marc: Let’s talk outcomes. Give me the menu.

Gwen: Option one is the full Monty. Humphrey’s is overruled, and for-cause removal protection for any agency head exercising executive power is unconstitutional.

Marc: That would hit every multimember independent agency.

Gwen: All of them. The FTC, the SEC, the NLRB, the Nuclear Regulatory Commission, the FEC — all the acronyms.

Marc: So aside from administrative Armageddon, what’s option two?

Gwen: Call it the Roberts special. Whatever Humphrey’s protected, the FTC no longer qualifies. He was probing this in his questions. The 1935 FTC might have been a quasi-judicial body, but the 2025 FTC is an enforcement machine. Humphrey’s survives in theory, but this FTC falls outside it.

Marc: It’s like an airline telling you your boarding pass is still valid, just not for any flight you’re actually taking this year.

Gwen: Yes, and you only find that out by going from counter to counter asking whether it works there.

Marc: Does this boarding pass work at the SEC? Does it work at the FTC? Does the SEC function like the new FTC?

Gwen: It turns into a very factual question for every agency.

Marc: We litigate it agency by agency.

Gwen: That does make it easy to keep the Fed. But it means a really slow, painful process.

Marc: And lots of uncertainty.

Gwen: Uncertainty as far as the eye can see.

Marc: Option three?

Gwen: Some sort of balancing test. There was some talk about what counts as core presidential power, so maybe some independent agencies could survive.

Marc: Is that part of the severance discussion the justices were having?

Gwen: There’s a problem, though. Almost every agency does something everybody would agree is executive. That’s why, when we first talked about Humphrey’s, we said that yes, the Court called the FTC quasi-legislative and quasi-adjudicatory, but everybody would put it in the executive branch.

Marc: Does this option get any traction with the justices?

Gwen: I really don’t think so. It makes it easy to save the Fed, so it’s potentially on the table for that reason alone. But it’s hard to square with the unitary executive theory, which says all executive power must be vested in the president, when you’re deciding case by case.

Marc: So now it gets awkward. Removal restrictions are unconstitutional, except when we like them.

Gwen: Yes, and Kagan pointed that out. It’s intellectually wobbly. But courts sometimes do wobbly things when the stakes are high enough, and the stakes are high here.

Marc: And even the narrow option isn’t all that narrow.

Gwen: It’s not. It doesn’t really matter whether you knock a building down with a wrecking ball or take it apart brick by brick. You still end up with a pile of rubble. The middle route just looks tidier while the demolition is happening.

Marc: Let me bring in some literature. Maybe we should start thinking about a new term: naked governance. That’s essentially what the administration is after, power stripped of any form of governance. Remember Hans Christian Andersen’s “The Emperor’s New Clothes”? The emperor was bamboozled by someone who sold him clothes that didn’t exist. He paraded naked around town while the public laughed, and the pretense held up only because of the emperor’s belief that he was actually clothed. So in Trump v. Slaughter, the Solicitor General is the clothesmaker, trying to convince the Court to pretend this is anything other than naked governance. Is that a fair analogy?

Gwen: I think it’s a good way to think about it. This is a pretty naked power grab, and you could say the Court is being asked to cloak it in the finest constitutional garments. The difference is that in the story, the emperor himself doesn’t know what’s happening. Here, I think everybody knows full well what’s on the table.

Marc: Let’s recap. Two episodes ago, we explained why independent agencies exist: the Odysseus analogy, the need for expertise and stability, the dangers of short-term political thinking.

Gwen: Right. And last episode, we explained the constitutional foundation and what “for cause” means: Humphrey’s Executor, Myers, and the ongoing tension between presidential power and congressional structure.

Marc: And now the Supreme Court is deciding whether any of that was constitutional in the first place.

Gwen: That sounds right.

Marc: The last two episodes were the prequel, and now we’re at the battle scene at the end of the trilogy.

Gwen: We are, and the Court is holding the lightsabers. Trump v. Slaughter is the culmination of most of what we’ve discussed so far. If the Court sides with the president — and it will, at least to some extent — the entire architecture of independent agencies changes overnight. I don’t think we even need to discuss the possibility that it sides with Slaughter.

Marc: So when will we know?

Gwen: Probably a few months. It’s moving quickly, but I don’t think it’ll come out as fast as the tariff case. Spring-ish. I don’t think it’ll drop on the last day of the term. But when it does, we’ll cover it.

Marc: We’ll have a new episode about it. It’ll be like a choose-your-own-adventure book, except we already know where the path leads.

Gwen: Next episode, we’re shifting gears to the major doctrines that define rulemaking: the major questions doctrine, and after that Chevron, Skidmore, Loper Bright, and Corner Post.

Marc: For Administrative Remedies, I’m Marc Roark.

Gwen: And I’m Gwen Savitz.

Marc: That does it for today’s episode. Thank you for joining us. If you enjoyed it, give us a like on Spotify, Apple Podcasts, or wherever you listen, and tune in next time as we continue to dive into the contours of administrative law. Because remember: you can’t fix what you don’t understand.