Civil Regulatory Enforcement as “Conclusive and Preclusive” Presidential Authority at Oral Argument in Trump v. Slaughter

Last week, the Supreme Court heard oral argument in Trump v. Slaughter—the case involving President Trump’s removal of FTC commissioner Rebecca Slaughter. Slaughter is challenging her removal on the grounds that it violated the Federal Trade Commission Act, which only allows removal of commissioners for certain, specified causes (none of which the President invoked). President Trump contends that the removal protections violate Article II of the Constitution and are, accordingly, invalid.

At oral argument, Slaughter’s attorney (Amit Aggarwal) proposed a novel way for the Court to uphold the removal protections. In her brief before the Court, Slaughter had conceded that the Constitution imposes some “limitations on Congress’s power to regulate the President’s removal authority,” such as where the regulation would restrict the President’s “conclusive and preclusive” authority. Looking to Trump v. United States, Slaughter’s brief allowed that “Congress could not require the President to exercise his commander-in-chief, criminal-prosecution, or treaty-making powers through a multimember agency with removal protections.” The Justices, however, pushed Aggarwal on the negative implication of this statement of the law—and several did not like what they heard.