Supreme Court Soon to Revisit President’s Authority to Remove Members of Independent Agencies

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Among the flurry of executive and regulatory actions earlier this year under the second Trump Administration, President Donald Trump fired the leadership at several independent, multi-member agencies such as the Equal Employment Opportunity Commission (EEOC), National Labor Relations Board (NLRB), and Federal Trade Commission (FTC). Some weren’t so surprising, such as the firing of NLRB General Counsel Jennifer Abruzzo, a Biden appointee who prioritized expanding workers’ rights. President Joe Biden dismissed the NLRB General Counsel and EEOC General Counsel at the start of his term. However, the removal of NLRB member Gwynn Wilcox, and EEOC Commissioners Charlotte Burrows and Jocelyn Samuels, were unprecedented moves impacting the enforcement of workplace law and leaving employers in an uncertain position for much of this year.

Can a president fire the leaders of independent agencies at will? Soon, the U.S. Supreme Court will hear a case that will have the potential to expand a president’s authority to remove these members of independent agencies. Although the case involves the FTC, it will have lasting repercussions for other independent agencies including the EEOC and NLRB.

On December 8, 2025, the U.S. Supreme Court will hear arguments in Trump v. Slaughter, involving former FTC commissioner, Rebecca Kelly Slaughter. Slaughter, along with Alvaro Bedoya, were two Democratic Commissioners of the FTC who received termination emails on March 18, 2025. Although Bedoya’s claims have been dismissed, Slaughter’s remain. The Supreme Court will take up two issues: (1) whether the statutory removal protections for members of the FTC violate the separation of powers and, if so, whether Humphrey’s Executor should be overruled, and (2) whether a federal court may prevent a person’s removal from public office.

Humphrey’s Executor v. United States, 295 U.S. 602 (1935) is a unanimous Supreme Court decision upholding the independence of federal agencies. The FTC’s underlying statutes provided that any Commissioner may be removed by the President only for “inefficiency, neglect of duty, or malfeasance in office,” and the Court held that Congress intended to restrict the power of removal to one or more of those causes.

The Court concluded that Congress can prevent a president from removing members of the FTC without cause because the FTC wields “quasi-legislative” and “quasi-judicial” power, not considerable executive functions. Although a president can usually fire subordinates for any reason, the Court continued, Congress has the power to create independent, multi-member regulatory agencies whose commissioners can only be removed for cause. The ruling in Humphrey’s Executor sustains Congress’s authority to restrict the President’s ability to remove officers to cases of misconduct or good cause.

More recently, the Court has held that Humphrey’s Executor requires a court closely analyze what powers the agency has. In Seila Law LLC v. CFPB (2020), the Court rejected independence of the Consumer Financial Protection Bureau (CFPB), finding it could make binding regulations and seek monetary penalties against private parties, which more closely resemble executive functions. And significantly, the CFPB is a single-director agency, not “non-partisan” or led by a “body of experts,” so these executive functions are performed unilaterally, not “balanced along partisan lines.” The Court also noted the abrupt shift in agency leadership that can occur in single-director agencies, because in multi-member agencies, commissioners serve staggered terms “to ensure the accumulation of institutional knowledge.”

Slaughter insists that Humphrey’s Executor bars the president from firing her unless one of the three criteria established by law for FTC commissioners – “inefficiency, neglect of duty, or malfeasance in office” – is present. Most statutory provisions that define the President’s removal authority specify these three causes, including for the National Transportation Safety Board, Office of Special Counsel, and Consumer Financial Protection Bureau.

Members of the NLRB can only be removed “upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.” There is no parallel language in Title VII.

IMPACT ON EMPLOYERS

As noted in the Seila Law opinion, abrupt shifts in agency leadership can lead to a loss of accumulated expertise in single-director agencies. However, the same can occur in multi-member agencies where terms aren’t adhered to, such as in the case of removals. For the EEOC, the removal of commissioners has led to the loss of accumulated expertise, but more significantly to the loss of a quorum. This means the agency has been unable to take any significant action such as issuing or rescinding guidance to help inform employers about its positions.

Under Title VII, the EEOC’s Commission leadership panel is comprised of five Commissioners. The President designates one of these as Chair or Acting Chair. Three Commissioners constitute a quorum at the agency. Without Burrows and Samuels, the EEOC was left with two Commissioners, and therefore lost its quorum in January 2025. Responsible for enforcing workplace anti-discrimination laws, the agency has been unable to vote on rulemaking, issue new policies, issue or rescind guidance documents, or take any formal actions on regulations, guidance, and enforcement plans. Policy-level changes have stalled. On October 7, 2025, the Senate confirmed a third Commissioner, Brittany Panuccio, and the agency regained its quorum.

Even though the President and EEOC’s Acting Chair, Andrea Lucas, have made their priorities clear, the EEOC’s inability to take significant action has created ongoing uncertainty because official guidance has not been issued. And although the agency now has a quorum, its duration is dubious and will likely depend on the outcome of Slaughter, as well as the Commissioners’ consistent alignment with the administration’s priorities.

Now that the EEOC’s quorum will allow it to proceed with revising or withdrawing regulations and guidance documents, changes on that front will be forthcoming, likely first with regard to the Pregnant Workers Fairness Act, the agency’s approach to gender identity, and “reverse discrimination” principles.

As for the NLRB, decision-making has stalled union-related disputes. Because the Supreme Court denied immediately hearing her case, Gwynn Wilcox’s legal fight is playing out in lower courts. The decision in Slaughter will likely impact the decision in her case, in addition to the case of Samuels, the fired EEOC member, which is also in litigation in a district court.

It is also worth mentioning that the FTC, while it enforces consumer protections and antitrust policy, also plays a role in the employment law realm, including in non-competes and restrictive covenants. Therefore, the FTC’s leadership and the stability within its ranks are of impact to employers.