Ex-Alito, Kavanaugh Clerk Defends Limits on Trump’s Firing Power

A former clerk to Samuel Alito and Brett Kavanaugh will face long-odds in convincing his former bosses to uphold a 90-year-old ruling limiting a president’s ability fire top government officials at will.

Amit Agarwal, who also served as Florida solicitor general under now US Attorney General Pam Bondi, will appear before the justices Monday to defend Rebecca Slaughter, the Democratic Federal Trade Commissioner who sued President Donald Trump over her firing and teed up the case for the court.

The conservative-dominated court has signaled an openness to interpreting presidential control over the executive branch in a way that favors Trump, leading to predictions that the justices are ready to abandon a 1935 precedent in Humphrey’s Executor v. US that provided removal protections for leaders of multi-member agencies.

Now an attorney with the nonpartisan nonprofit Protect Democracy, Agarwal has tried making the “conservative case” against firing Slaughter and other officials. He debuted that argument in The Bulwark in April, calling the dismissals a “power grab” that defied the text of the Constitution and long-established removal protections that Congress created for independent federal agencies.

‘Conservative Arguments’

That stance has found some support in conservative legal circles, which includes some of the leading proponents of Trump’s expansive view of executive power.

Caleb Nelson, a University of Virginia law professor and former clerk to Justice Clarence Thomas, in a September essay published by New York University’s Democracy Project said that when it comes to the president’s removal powers, the text and history of the Constitution “are far more equivocal than the current court has been suggesting.”

A group of former judges, White House lawyers, and other government officials tapped by Republican presidents also submitted a friend-of-the-court brief arguing Humphrey’s Executor was an “originalist decision” in line with today’s predominant mode of legal interpretation.

Such arguments demonstrate some of the tensions in conservative principles as applied to the case, said Alan Raul, a former counsel to President Ronald Reagan who organized the brief supporting Slaughter.

”We’d like the justices to grapple with conservative arguments in deferring to Congress,” Raul said.

Unitary Executive

Protect Democracy, which is engaged in several legal fights with the administration, said Agarwal wouldn’t comment ahead of arguments. But he’s been outspoken in recent months about what he sees as the threat the Trump administration poses to democracy.

He’s also voiced frustrations about the “unitary executive theory,” which holds the president has sole authority over the executive branch, and the real-world implications of that principle being pushed to its extreme.

“This brings me back to why I became a conservative—the Edmund Burke approach to conservatism,” he said during a conference in October hosted by the Society for the Rule of Law, a conservative legal group critical of Trump and of which Agarwal is a member.

“I thought it was a foundational precept of conservatism that experience is more reliable than abstract theory as a guide to human conduct,” he said.

While Agarwal said he’s stayed true to conservative principles, his career has veered from what was a traditional mode of advancement in the conservative legal movement.

In February, he joined Protect Democracy, where his wife, Shalini Agarwal, also works as an attorney. She joined in 2021 after previous stints at the ACLU of Florida and the Southern Poverty Law Center.

Agarwal’s own move followed a career that, along with clerkships for Alito and Kavanaugh when the latter was at the US Court of Appeals for the DC Circuit, included several years in the Miami US attorney’s office. He then served as Florida’s chief appeals court attorney from 2016-2021, before leaving government to become a partner at Holland & Knight.

‘What Moment Demands’

Agarwal was a vocal supporter of Kavanaugh’s 2018 Supreme Court nomination, authoring a Fox News op-ed highlighting the assistance the judge offered him throughout his career. And he later donated $2,000 to Republican Nikki Haley’s 2024 presidential campaign, according to election records.

But months before last year’s election, he left Holland & Knight to work on Joe Biden’s campaign, according to his LinkedIn profile. He then joined the Kamala Harris campaign’s legal team after Biden dropped out, and he has since March pushed for Slaughter’s reinstatement with a team from Protect Democracy.

People in “the legal conservative legal world have come to different conclusions about what this moment demands,” said Gregg Nunziata, a former chief nominations counsel for Senate Republicans now leading the Society for the Rule of Law.

Agarwal “views the world and legal issues through a fundamentally conservative lens,” Nunziata added. “He would tell you that he’s been motivated by the same principles that drew him to government service in the first place.”

While two lower courts ruled Trump’s firing of Slaughter was unlawful, the administration will have momentum on its side when US Solicitor General John Sauer appears opposite Agarwal.

The administration claims Article II of the Constitution empowers the president to remove officials exercising executive power, citing as support Chief Justice John Roberts’ majority opinion in 2020 letting Trump fire the head of the Consumer Financial Protection Bureau.

A key question is how far a court ruling in favor of the administration could go, and whether a decision upending removal protections for members of regulatory agencies will impact the Federal Reserve.

Such questions go beyond the formation of the executive branch and separation of powers, Agarwal said in a video shared by Protect Democracy on Dec. 2. A Trump win in the FTC case, he said, means “regular people lose the kind of referees that Congress intended to keep things fair.”