Conservative Justices Confront Historical Dilemma in FTC Firing

Upcoming US Supreme Court debate over the president’s power to fire agency officials will test the conservative justices’ willingness to grapple with newly developed historical evidence that runs counter to their views of America’s past.

Legal historians have submitted a slew of amicus briefs supporting fired Federal Trade Commission member Rebecca Slaughter’s bid to regain her post, marshaling new scholarship to challenge the historical narrative supporting a line of high court rulings that expanded presidential removal authority.

Trump v. Slaughter, set for oral argument Dec. 8, will have ramifications not just on presidential power, but also the legitimacy of the Supreme Court’s use of history to justify major changes to US law.

“What do you do when the Supreme Court says its decisions are supported by history, but history doesn’t support the Supreme Court?” said Craig Green, a Temple University law professor and historian who wasn’t involved in the briefs.

The magnified importance of history in Supreme Court disputes stems from many of the conservative justices’ practice of originalism, a method of constitutional interpretation holding that the text should be read as it would have been when it was adopted.

But many historians have criticized the majority’s use of history as selective and opportunistic, particularly in its deployment of a “history and tradition” test in landmark decisions overturning the federal right to an abortion and rolling back gun restrictions.

The court’s conservatives cite history to “hide their power as decision-makers,” framing their rulings as simply doing what the past demands rather than making ideological choices that shape the future, said Laura Edwards, a history professor at Princeton University.

“As a professional historian, it offends me,” Edwards said. “It’s difficult to watch people cherry pick from history to support very current legal theories. It does a disservice to the past and denies what they’re doing today.”

Diving Deeper

The core question in Slaughter’s case is whether the Constitution allows Congress to impose limitations on the president’s authority to fire agency officials. Although the Constitution describes presidential appointment power, it says nothing expressly about removal.

The Supreme Court endorsed FTC members’ job protections in 1935’s Humphrey’s Executor v. US. More than two-dozen agencies have similar safeguards for their members written in law requiring cause for removal, typically inefficiency, neglect of duty, or malfeasance in office. President Donald Trump has fired several agency officials in apparent violation of those laws.

The high court planted the seeds for overturning Humphrey’s Executor in a 2010 decision that invalidated removal shields for members of a government-created private commission that oversees the audits of public companies. The court’s ruling in Free Enterprise Fund v. PCAOB said the Constitution “has been understood” to give presidents the power to dismiss those who wield executive power on their behalf since 1789, a reference to the First Congress and its “Decision of 1789.”

The percolating scholarly interest in early understandings of presidential removal power came to a boil with Seila Law v. CFPB, a 2020 high court ruling that invalidated removal protections for the head of the Consumer Financial Protection Bureau, said Noah Rosenblum, a New York University legal historian.

The more recent scholarship uses newly developed information and a more fine-grained analysis of existing sources, he said.

Rosenblum jointly filed one of the five briefs from academics who argue against granting the president unrestrainable firing power. Four of the briefs feature at least one scholar with a PhD in history.

Legal scholars filed two briefs in favor of expanding removal authority, although neither of them included a professor with an advanced history degree.

More Power Than the King?

Scholars’ amicus briefs supporting removal protections cite newer research to argue that the First Congress didn’t establish an original public consensus on the Constitution granting the president unfettered firing power.

The First Congress gave the president the power to dismiss heads of the Foreign Affairs, War, and Treasury Departments in the Decision of 1789, but many supporters viewed that firing power as coming from congressional authorization rather than inherent presidential authority, scholars said. Lawmakers also switched positions, often without explanation.

“Legislators’ varied motives aside, what the First Congress actually said about removal was quite limited,” according to a brief from Andrea Scoseria Katz of Washington University in St. Louis and Jonathan Gienapp of Stanford University. “Fundamentally, the Decision only pertained to the removal of those three Department heads.”

While the Constitution was silent on removal, preceding models for executive authority allowed for firing shields—including independent commissioners created by the British Parliament who couldn’t be dismissed by the king, scholars said.

Proposing unlimited removal power as part of the executive branch would have been novel to the Founders, Fordham University legal historian Jane Manners said in her brief.

“And the suggestion that the President must have greater power over officers than even the King would have drawn outrage and fierce debate by Antifederalists in the Constitutional Convention and ratification debates,” she said.

Recent historical scholarship also buttressed briefs highlighting the Founding-era use of independent commissions, deep roots for quasi-judicial and quasi-legislative agencies falling outside the president’s sole discretion, and congressional power to create conditions on removing officials.

The Flip Side

Nevertheless, other legal scholars filed briefs arguing history supports a broad view of presidential removal power.

Two leading academic proponents of the president’s sole control over the executive branch—Steven Calabresi of Northwestern University and Christopher Yoo of the University of Pennsylvania—joined a brief with two former attorneys general. But they didn’t acknowledge the recent historical scholarship challenging their conclusions.

University of Minnesota law professor Ilan Wurman responded to some of the newer research in his brief backing the Trump administration. He told Bloomberg Law that it was very useful, helping him rethink and hone his arguments, but that its value is limited.

“A lot of it isn’t all that new, and what is new doesn’t necessarily prove what its proponents say it does,” Wurman said.

The case is Trump v. Slaughter, U.S., No. 25-332, oral argument scheduled 12/8/25.