Justices to Showcase Originalism Flaws in Slaughter Firing Case

No matter what the US Supreme Court decides in the highly-anticipated Trump v. Slaughter case, to be argued Monday, they will have undermined the theory of originalism, a favorite doctrine of several of the conservative justices.

The case concerns President Donald Trump’s termination of Rebecca Slaughter as a commissioner of the Federal Trade Commission. Trump claims he can fire Slaughter without cause, despite the Supreme Court’s 1935 Humphrey’s Executor decision upholding a congressional statute that protects some federal officials from termination absent cause.

Past decisions have already chipped away at the Humphrey’s Executor decision, and it seems certain that the Roberts Court will do what Trump wants and overrule the case.

The outcome in the Slaughter case will be of enormous importance. In the aggregate, federal agencies greatly affect American life. Allowing the president to fire more executive officers at-will could turn these powerful entities into a political arm of a president, undermining their capacity to make non-partisan, fact-based decisions for the benefit of the American people.

Moreover, because the conservative justices have put themselves in a jurisprudential corner, no matter what they decide, their decision will be another blow to the public’s already weakened confidence in the court.

The Slaughter case puts a spotlight on the flawed ideology of originalism and the difficulty of applying it. An originalist maintains that the Constitution should mean today what it meant to the framers and the “public” when it was adopted in 1789. In defense of handcuffing contemporary constitutional meaning to what it meant 240 years ago, originalists say their approach substantially reduces the freedom judges have in making decisions. In turn, this prevents justices from imposing their own personal views on the American public and “making law.”

Applying originalism in the Slaughter case is problematic. Originalism requires the justices to decide what the public and framers in 1789 might have thought about a president’s power to fire administrative officials who are formally part of the executive branch, but who exercise not only executive authority, but make law when adopting regulations, and discharge judicial functions in deciding contested administrative hearings. These officers, common in the modern administrative state, didn’t exist before the late 19th century—one can only guess as to what the 18th century public’s understanding of the president’s power to fire such officers would be.

In the Slaughter case, that daunting speculative puzzle is now even more difficult to resolve. A few weeks ago, Caleb Nelson, a respected legal scholar and a self-proclaimed originalist, argued that originalism doesn’t support Trump’s claim for power. He reads the Constitution as granting Congress the authority to decide whether the president has the power to remove officers in an agency Congress created.

But the conservative justices have signaled they could take another approach. They may find that Trump does have the power to remove Slaughter by applying a robust reading of the Vesting Clause and their view of a muscular “unitary executive.”

That means that a good faith application of originalism could lead to two directly opposite conclusions. This undermines the idea that applying originalism reduces judicial discretion by leading to one proper resolution to a legal question.

If the justices in the Slaughter case don’t employ originalism interpretation because it fails to support Trump’s power assertion but still rule in the president’s favor, they will further undermine public trust in the judiciary by appearing results-oriented.

In 1787, Benjamin Franklin mused about whether the American people would be able to keep the republic set forth in the Constitution. Given the Trump administration’s actions, Franklin’s question is back on the table. And while Trump and his political allies are mainly responsible for the contemporary worries about the continued viability of the American political experiment, many Roberts Court decisions have contributed to the fear that some form of authoritarianism is around the corner.

To arrest those fears, the nation needs the justices to uphold Humphrey’s Executor, to protect administrative agency leaders from arbitrary removal, and to reassure the American people that it will uphold the nation’s aspirations.

The case is Trump v. Slaughter, US, No. 25-332, to be argued 12/8/25.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

David Rudenstine is a law professor at Cardozo School of Law, where he served as the Dean from 2001-2009. Professor Rudenstine has a new book expected on former Supreme Court Chief Justice Charles Evans Hughes.

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