Employment & Labor Insider

Yesterday the U.S. Supreme Court, in a 6-3 decision along partisan lines, ruled against Rebecca Kelly Slaughter in her bid to keep her position as a Commissioner with the Federal Trade Commission.

Ms. Slaughter was terminated by President Trump in March 2025.

In her challenge to her termination, Ms. Slaughter cited statutory removal protections for heads of “independent” federal commissions and boards. The removal protections were upheld to some degree in a 1935 Supreme Court decision in Humphrey’s Executor. In Humphrey’s Executor, the Court generally held that Congress could, without violating Article II of the Constitution, enact ”for-cause” removal protections for government officials on multi-member boards and for heads of “independent” agencies, as long as the boards and agencies served only adjudicatory or legislative functions and did not exercise executive power.

Yesterday’s Slaughter decision overrules Humphrey’s Executor, and the decision has implications for other officials who have been terminated by President Trump, including Gwynne Wilcox of the National Labor Relations Board.

The Slaughter decision

Chief Justice John Roberts, for the majority, wrote, “The FTC’s for-cause removal provision violates the separation of powers.” Finding the facts of the modern FTC role distinguishable from those addressed by the Court in Humphrey’s Executor, he noted, “The FTC unquestionably exercises executive power, and must therefore be controlled by the Chief Executive, in whom such power is vested. It follows, then, that Slaughter served as the president’s subordinate at the FTC – and that the president was entitled to cut her tenure short.”

In dissent, Justice Sonia Sotomayor wrote, in part, that the decision “undoes centuries of political practice” and is “wrong.”

Implications for NLRB’s Wilcox

The Slaughter decision is likely to apply beyond the FTC to other federal commissions and boards and their highest officials – past, present, and future.

One such “past” board official is Gwynne Wilcox, a former Member of the NLRB whom President Trump terminated not long after he took office for his second term.

Ms. Wilcox, along with other former agency heads, has been challenging her termination in court, but the Slaughter decision probably means the end of her challenge.

The history of Ms. Wilcox’s fight for reinstatement to the Board is a long “back and forth” that we have chronicled here, here, here, and here.

Ms. Wilcox’s challenge was successful (along party lines) in 2025 in a federal district court and at the full U.S. Court of Appeals for the D.C. Circuit, with an order allowing her to remain on the Board. But the Trump Administration sought high court review, and the D.C. Circuit order was administratively stayed by Chief Justice Roberts. Then, on May 22, 2025, the Supreme Court voted 6-3 (again, along party lines), to reverse the D.C. Circuit decision, which meant that Ms. Wilcox was removed from her position until her case could be decided on the merits or otherwise concluded.

Barring a creative argument that it does not apply to her situation, the Slaughter decision is likely to mean the end of Ms. Wilcox’s challenge.

Broader significance of Slaughter

Yesterday’s decision represents a further limitation on the ability of Congress to infringe on powers reserved by Article II to the executive branch, often to constrain the executive branch. The decision brings more direct political and legal control, responsibility, and accountability to the executive branch for administrative actions at the federal level, which some call a bureaucracy with little accountability to the voting public.

But executive branch power in the administrative sphere is not wholly unchecked. In another decision announced yesterday, the Court, voting 5-5 with Chief Justice Roberts again writing for the majority, decided not to stay a lower court order that is keeping a Federal Reserve Governor in her position based on statutory “for-cause” removal protections.

This decision, involving Lisa Cook, is at least in part based on the “nation’s tradition of central banking protected from political interference.” In short, the Federal Reserve is getting different treatment based on its unique history, a history that – in the view of the Court – the FTC and presumably the NLRB and other federal commissions and boards exercising executive functions do not share.