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elena kagan
'Grave Danger': Warnings as Supreme Court Looks Ready to Hand Trump Even More Unchecked Power
The court's right-wing majority signaled a willingness to overturn the 90-year-old precedent Humphrey’s Executor—a move that would "enable Donald Trump’s corrupt march toward oligarchy," said one critic.
Dec 08, 2025
The warnings on Monday from the US Supreme Court’s liberal justices were stark as the Trump administration argued in favor of allowing the president to easily fire top officials at federal agencies—a move that would reverse nearly a century of precedent that originated with a unanimous ruling known as Humphrey's Executor in 1935.
"You're asking us to destroy the structure of government," Justice Sonia Sotomayor told Solicitor General D. John Sauer, who argued on behalf of the Trump administration that Humphrey's Executor limits presidential authority in an unconstitutional way even following rulings by the conservative majority that have weakened the decision.
Justice Elena Kagan added that setting aside the precedent and allowing President Donald Trump to fire Federal Trade Commission (FTC) board members and other federal agency leaders would “put massive, uncontrolled, unchecked power in the hands of the president.”
"Once you're down this road, it's a little bit hard to see how you stop," Kagan said.
But the court's right-wing majority signaled little concern about the unchecked authority it could give the president should it rule in Trump's favor in the coming months in Trump v. Slaughter, which centers on the White House's firing of FTC Commissioner Rebecca Kelly Slaughter, a strong defender of consumer rights in March.
Slaughter has said she was dismissed for being "inconsistent with [the] administration's priorities" as the Department of Government Efficiency was gutting federal agencies and rooting out programs and employees that were also viewed as being in the way of Trump's right-wing agenda.
But under Humphrey's Executor, which was decided after former President Franklin D. Roosevelt tried to remove an FTC member, a president can fire a board member only for "inefficiency, neglect of duty, or malfeasance in office," in accordance with a law passed by Congress in 1914.
The ruling established that the president can remove executive officials without cause, but not at independent agencies that are "neither political nor executive, but predominantly quasi-judicial and quasi-legislative," such as the FTC.
Sauer wrote in a court document that the ruling "was always egregiously wrong," furthering the argument made by right-wing proponents of the "unitary executive" theory—a view that holds that the president should hold absolute power over federal agencies, including by firing leaders they view as opposed to their agenda.
A lawyer for Slaughter, Amit Agarwal of Protect Democracy, told the justices on Monday that "dozens of institutions that have been around for a long time, that have withstood the test of time, that embody a distillation of human wisdom and experience, all of those would go south” if the court allowed the president to hold complete control over agencies.
Undoing Humphrey's Executor would “profoundly destabilize institutions that are now inextricably intertwined with the fabric of American governance," Slaughter's lawyers have argued.
Chief Justice John Roberts signaled an unwillingness to preserve the 90-year-old precedent, calling the ruling a "dried husk" at one point. Right-wing courts and justices have worked to weaken the precedent for more than a decade, with Roberts writing in a 2010 opinion that the president's power should be understood to include “the authority to remove those who assist him in carrying out his duties."
A decade later, the Supreme Court ruled in a 5-4 decision in Seila Law LLC v. Consumer Financial Protection Bureau that the CFPB's structure itself was unconstitutional because the president does not have the authority to fire the director of the independent agency without just cause.
On Monday, Josh Orton, director of judiciary reform group Demand Justice, said there was "grave danger in what the Supreme Court appears willing to do today: hand giant corporations and Donald Trump’s billionaire class unchecked power over our economic system, gutting one of the few institutions left that’s charged with ensuring fairness, stability, and competition in our economy.
“For generations, independent federal agencies, including the Federal Trade Commission and the Federal Reserve, have proven essential to the long-term stability of our country and markets—all to the benefit of workers, consumers, and businesses alike," said Orton.
A lower court ruled earlier this year that Slaughter had been illegally fired, but the Supreme Court in September allowed the dismissal to stand with an emergency order, until the case could be heard.
The Supreme Court has also permitted Trump to move forward, at least temporarily, with the firings of officials at the National Labor Relations Board, the Merit Systems Protection Board, and the Consumer Product Safety Commission.
The justices on Monday signaled that even if they allow the president's firing of Slaughter and the other officials, they may not approve the dismissal of Federal Reserve Gov. Lisa Cook, who the court has permitted to stay in her role despite Trump's attempt to fire her. The court is scheduled to hear a separate case in January regarding Cook's firing.
But Kate Judge, a professor at Columbia Law School, said an overruling of Humphrey's Executor would ultimately have an impact on the Federal Reserve even if the justices carve out an exception.
"[The] Fed's practical independence and the legitimacy needed to sustain it grew alongside the independence of other agencies," said Judge. "It will be hard to maintain faith in one technocratic body while saying the rest are legitimate only because they are directly answerable to the president."
With or without an exception, Orton argued that "a Supreme Court that overturns Humphrey’s Executor and 90 years of precedent to enable Donald Trump’s corrupt march toward oligarchy is simply not a sustainable or legitimate institution.”
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Supreme Court Lets Trump Withhold $4 Billion in Foreign Aid Approved by Congress
"This result further erodes separation of powers principles that are fundamental to our constitutional order," said one critic.
Sep 26, 2025
The US Supreme Court on Friday gave President Donald Trump the green light to withhold billions of dollars of congressionally approved foreign aid, a major win for the White House and executive authority and, according to critics, a body blow to the bedrock constitutional principle of congressional power of the purse.
At issue in Department of State v. AIDS Vaccine Advocacy Coalition is $4 billion in foreign aid allocated by Congress that the Trump administration determined was wasteful, including funding for international public health such as HIV prevention programs, which have been credited with saving millions of lives.
The high court's right-wing majority found that "the asserted harms to the executive’s conduct of foreign affairs appear to outweigh the potential harm" to aid recipients, while cautioning that "this order should not be read as a final determination on the merits."
BREAKING: Supreme Court lets Trump unilaterally freeze billions in congressionally appropriated foreign aid money apparent 6-3 vote with liberals in dissent @courthousenews.bsky.social
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— Kelsey Reichmann (@kelseyreichmann.bsky.social) September 26, 2025 at 1:43 PM
The Trump administration sought not only validation of its claimed ability to claw back spending previously approved by Congress—which under the Constitution generally holds power of the purse—but also of "pocket recission," a highly contentious budgetary maneuver to cancel previously approved federal expenditures by exploiting legal ambiguity in the Impoundment Control Act (ICA).
Democrats and many legal experts contend that pocket recissions are illegal, and Democratic lawmakers warned even before Trump's White House return that he would try to use the tactic in order to refuse to disburse funds allocated by Congress for social programs.
Justice Elena Kagan—who dissented along with fellow liberals Sonia Sotomayor and Ketanji Brown Jackson—asserted that the majority approved "essentially a presidential usurpation of Congress' power of the purse."
"The stakes are high: At issue is the allocation of power between the executive and Congress over the expenditure of public monies," Kagan said.
“That is just the price of living under a Constitution that gives Congress the power to make spending decisions through the enactment of appropriations laws,” she wrote. “If those laws require obligation of the money, and if Congress has not by rescission or other action relieved the executive of that duty, then the executive must comply.”
Earlier this year, the Supreme Court dealt a temporary blow to Trump's evisceration of the US Agency for International Development (USAID) in a ruling that left intact a lower court's decision ordering the resumption of approximately $2 billion in foreign aid frozen by the administration.
Friday's ruling could complicate bipartisan negotiations to avert a Republican government shutdown as the September 30 deadline looms. Democratic negotiators now worry that Trump, buoyed by the high court decision, could again refuse to spend funds designated by Congress.
“Today’s ruling allows the administration to unilaterally refuse to spend $4 billion in foreign assistance funds that it is required by law to spend," said Nicolas Sansone, an attorney at the consumer advocacy group Public Citizen and counsel for the AIDS Vaccine Advocacy Coalition. "This result further erodes separation of powers principles that are fundamental to our constitutional order. It will also have a grave humanitarian impact.”
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Supreme Court to Weigh 90-Year-Old Precedent and Let Trump Fire FTC Commissioner
"Rest in peace to the presidency, and long live the king," quipped one attorney.
Sep 22, 2025
As US President Donald Trump faces mounting accusations of authoritarian conduct, the Supreme Court's right-wing majority on Monday empowered him to proceed with firing a Democratic member of the Federal Trade Commission and agreed to review a 90-year-old precedent that restricts executive power over independent agencies such as the FTC.
Trump in March fired the FTC's two Democratic commissioners, Rebecca Kelly Slaughter and Alvaro Bedoya, without cause. Slaughter fought back, and US District Judge Loren AliKhan allowed her to return to work while the case continued. The Court of Appeals for the District of Columbia upheld that decision, but it was halted Monday by the nation's top court.
Monday's decision was unsigned, though the three liberals collectively dissented, led by Justice Elena Kagan. In addition to letting Trump move forward with ousting Slaughter, the majority agreed to reconsider the precedent established with Humphrey's Executor v. United States, a 1935 case that centered on whether the Federal Trade Commission Act unconstitutionally interfered with the executive power of the president.
In Humphrey's Executor, the high court found that Congress' removal protections for FTC members did not violate the separation of powers. Along with revisiting the precedent established by that landmark decision in December, the justices plan to weigh whether a federal court may prevent a person's removal from public office.
The court's stay allowing Trump to fire Slaughter was granted as part of the court's emergency process, or shadow docket. In a short but scathing dissent, Kagan noted that it is part of a recent trend: "Earlier this year, the same majority, by the same mechanism, permitted the president to fire without cause members of the National Labor Relations Board, the Merits Systems Protection Board, and the Consumer Product Safety Commission."
"I dissented from the majority's prior stay orders, and today do so again. Under existing law, what Congress said goes—as this court unanimously decided nearly a century ago," she wrote. In Humphrey's Executor, Kagan continued, "Congress, we held, may restrict the president's power to remove members of the FTC, as well as other agencies performing 'quasi-legislative or quasi-judicial' functions, without violating the Constitution."
"So the president cannot, as he concededly did here, fire an FTC commissioner without any reason. To reach a different result requires reversing the rule stated in Humphrey's: It entails overriding rather than accepting Congress' judgment about agency design," she argued. "The majority may be raring to take that action, as its grant of certiorari before judgment suggests. But until the deed is done, Humphrey's controls, and prevents the majority from giving the president the unlimited removal power Congress denied him."
More broadly, Kagan declared that "our emergency docket should never be used, as it has been this year, to permit what our own precedent bars. Still more, it should not be used, as it also has been, to transfer government authority from Congress to the president, and thus to reshape the nation's separation of powers."
Kagan, of course, is correct that the Supreme Court will soon overturn Humphrey's Executor and allow the president to fire leaders of any independent agency (other than the Fed—maybe?!). She's also right to bemoan the fact that SCOTUS effectively overruled Humphrey's on the shadow docket already.
— Mark Joseph Stern (@mjsdc.bsky.social) September 22, 2025 at 3:20 PM
Sandeep Vaheesan, legal director at the anti-monopoly think tank Open Markets Institute, slammed the court in a Monday statement.
"Today, in a one-paragraph order, the Supreme Court authorized President Trump's illegal firing of Commissioner Rebecca Kelly Slaughter and his ongoing destruction of the independent, bipartisan Federal Trade Commission," Vaheesan said.
"As Justice Kagan wrote in her dissent, Commissioner Slaughter was fired without cause and is clearly entitled to her position under the FTC Act and controlling Supreme Court precedent," he added. "The court could override Congress' decision to create an independent FTC on specious constitutional grounds but until it takes that step Commissioner Slaughter has a right to her job.”
While the justices agreed to take Slaughter's case, they turned away petitions from two ousted Democratic appointees referenced by Kagan: Cathy Harris of the Merit Systems Protection Board and Gwynne Wilcox of the National Labor Relations Board. According to SCOTUSblog: "The court did not provide any explanation for its decision not to take up Harris' and Wilcox's cases at this time. They will continue to move forward in the lower courts."
The New York Times noted that "the justices are separately considering the Trump administration’s request to remove Lisa Cook as a Federal Reserve governor. The Supreme Court has yet to act, but has suggested that the central bank may be insulated from presidential meddling under the law."
However, as Law Dork's Chris Geidner highlighted on social media, the second question the justices will consider in the Slaughter case, regarding courts preventing removals from public office, "would have implications even for the 'Fed carveout' exception that the court suggested exists."
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