Advisory Opinions – “All About Slaughter”

Podcast: Advisory Opinions – The Dispatch
Hosts: Sarah Isgur (A), David French (C)
Episode: "All About Slaughter"
Date: December 4, 2025

Overview

This episode of Advisory Opinions is a deep, thorough dive into the Supreme Court case about the removal of Rebecca Slaughter, an FTC commissioner, and its wider implications for independent agencies, the unitary executive theory, and the legacy of Humphrey’s Executor v. United States. Sarah Isgur and David French break down the philosophical, legal, and practical dimensions of executive power, agency independence, and the structural Constitution—connecting a century of precedent to the upcoming oral argument. The hosts also provide updates and commentary on First Choice Women’s Resource Centers v. Platkin, a major First Amendment case, and the military “boat strike” investigation.

Main Themes and Purpose

• Preview of the Supreme Court oral argument on whether the President can remove FTC commissioners at will and whether the precedent of Humphrey’s Executor should stand.
• Historical evolution of executive power and agency independence in American constitutional law.
• Philosophical debate: the merits of severability doctrine and the legitimacy of the "unitary executive" theory.
• Discussion of remedies: what courts can do if a public officer is unlawfully fired.
• Broader implications for the administrative state and separation of powers.

Key Discussion Points and Insights

I. Setting the Stage: Administrative Agencies, Separation of Powers, and How We Got Here

• Congress’ Strategic Creation of Agencies (03:25):

  • Sarah outlines how Congress, over the past 130 years, created quasi-independent agencies (like the FTC) and procedurally constrained the executive’s removal power as a method to retain some legislative control.

    “Congress tried to hold onto some of its power... it creates these quasi independent agencies, but then puts limits on removal power… that was a way of maintaining control or at least preventing the President from having too much control over these large swaths of the economy.” (03:25, Sarah)

• Legislative Veto and INS v. Chadha:

  • Congress’ fallback was the legislative veto—easy for Congress to override agency/presidential actions, until INS v. Chadha (04:04) invalidated the one-house veto, fundamentally changing the balance.

• Progressive Era Philosophy & Rise of Technocrats (04:37, David):

  • David describes how the creation of expert-led independent agencies was justified as necessary for managing society’s complexity—relying on a vision increasingly in tension with a strict “unitary executive” understanding.

• Humphrey’s Executor (1935) and Morrison v. Olson (1988):

  • Humphrey’s Executor upheld for-cause protections for FTC Commissioners; Morrison v. Olson upheld independent counsels. Originally viewed as settled, these have come under fresh attack as the Court’s philosophy has swung.

• Scalia’s Dissent & “The Wolf Comes as a Wolf” (07:13):

  "Power, the allocation of power among Congress, the President and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish… Frequently, an issue of this sort will come before the court clad, so to speak, in sheep's clothing… But this wolf comes as a wolf.” (07:17, Sarah, quoting Scalia)

II. Who Is Rebecca Slaughter & The Specifics of the Case

• Rebecca Slaughter—Biographical Context (09:22):

  • Yale grad, Democrat, appointed to the FTC due to statutory requirement for party balance (i.e., presidents don’t freely pick all commissioners).
  • Fired in March 2025 by President Trump, a move triggering the challenge.

• Procedural Posture (10:18):

  • Case arose on the interim (emergency) docket; Supreme Court granted cert before judgment (i.e., before appellate review), signaling heightened interest.

III. The Questions Presented

• Supreme Court’s Two Key Questions (11:02):

  1. Do statutory removal protections for FTC members violate separation of powers? If so, should Humphrey's Executor be overruled?
  2. Can a federal court order someone’s reinstatement to public office if they’re unlawfully removed?

• Circularity or Breadth?

  • Sarah’s view: Question Two depends on the answer to Question One.

    “Begs the question in the actual way we were supposed to use that term...Your answer to that question is based on your answer to question one.” (12:51, Sarah)

  • David: Question Two might sweep more broadly, raising profound issues for all public officers—not just agency heads. (13:02)

IV. Statutory and Precedential Background

• Statute Governing the FTC:

  • For-cause removal protection; partisan balance required for appointments.
  • Cited Humphrey’s Executor as repeatedly reaffirmed, including Morrison v. Olson, Free Enterprise Fund, Seila Law, and Collins v. Yellen (16:36).

• The Two Paths at SCOTUS:

  • Narrow Ruling: The “current” FTC is more executive than the 1930s FTC, so the precedent is distinguishable.
  • Broad Ruling: No quasi-legislative/judicial “fourth branch”—either you’re executive (removable at will) or not (18:50).

V. The Radical Severability Debate

• Sarah’s “CT-radicalized” View (20:57):

  • Advocates for total invalidation rather than “piecemeal scalpel” approaches. If checks (like removal protection) are unconstitutional, the whole agency structure should fall unless Congress reenacts it.

    “If you remove anything from that bill, it was not going to pass. That's how bills work. Every single piece of it was necessary to get the votes... I think severability law is a fiction.” (24:27, Sarah)

  • She opposes the Court’s practice of severing unconstitutional provisions while leaving the rest of the law ("Frankenstein hybrid").

• David’s Reliance Arguments (21:19):

  • Explores when systemic economic and regulatory dependence on an unconstitutional law overstays judicial correction (comparing with possible radical attacks on entitlement programs).

VI. Key Precedents Walk-through

1. Myers v. United States (1926)

• Court, led by former President Chief Justice Taft, found President has unfettered removal power over executive officers.

  “Article 2 vests the executive power of the government in one person, the President, and that the executive power includes the authority to select those who are to act for him under his direction in the execution of the laws.” (31:18, Sarah)

2. Humphrey’s Executor (1935)

• Upheld for-cause removal protection for FTC Commissioners, claiming they act quasi-legislatively and quasi-judicially, not as “purely executive officers.”

  “Such a body, the Court explained, cannot in any proper sense be characterized as an arm or an eye of the executive.” (38:24, Sarah)

• Both hosts ridicule the “quasi” distinctions as products of Progressive Era philosophy, out of place in today’s constitutional structure.

  “What are they saying it is? It's definitely not executive... Where is it then? They're saying it's quasi legislative and quasi judicial. This is like substantive due process. Those words literally don't make sense to me.” (38:52, Sarah) “Trying to put a, like a camel through an eye of a needle. And what we ended up with was... a creation of a particular kind of bureaucracy as a result of what turns out to be a really kind of trendy here today, gone tomorrow political theory, but then put its roots deep into American soil.” (39:02, David)

3. Morrison v. Olson (1988)

• Upheld independent counsel structure, but with Scalia’s famous dissent, now viewed as visionary.

4. Seila Law (2020)

• Invalidated removal restrictions for the single-director CFPB, but did not overturn Humphrey’s Executor—though the seam is fraying.

  “As in every severability case, there may be means of remedying the defect in the CFPB structure that the Court lacks the authority to provide. Our severability analysis does not foreclose Congress from pursuing alternative responses to the problem. For example, converting the CFPB into a multi member agency like the FTC is what's implied there…” (42:56, Sarah, reading opinion)

• Thomas’s Dissent—total cynicism toward “quasi” powers; wants bulldozer, not scalpel.

VII. Remedies: What Can the Courts Do?

• Judge Rao’s Dissent (49:10):

  • Opposed court-ordered reinstatement of Slaughter; no statutory or equitable authority for such relief against the executive.

  “There's no statute that provides for this power. And under the court's equitable powers here, reading from her, the District Court purported to order the reinstatement of Slaughter and to bar the other FTC commissioners from removing her from office or interfering with her right to perform her lawful duties as an FTC commissioner. Such injunctive relief is unprecedented and creates a direct confrontation with the President over his Core Article 2 powers.” (49:10, Sarah)

• Standing & Injury:

  • Argues Slaughter’s injury is monetary (salary), not some intangible loss of dignity or policy influence.

• David Pushes Back:

  • Warns about extending at-will removal to the entire federal workforce—risks returning to a “spoils system.”

  “What’s at issue here isn't just the financial interest of the employee, but the structure of the government itself.” (52:21, David)

  • Differentiates between true policymakers (where unitary executive might apply) and the civil service rank-and-file.

VIII. First Choice Women’s Resource Centers v. Platkin: Free Speech, Donor Privacy, and State Power

• Case Basics (56:47):

  • New Jersey AG subpoenaed a pro-life women’s center for donor records; center sued in federal court.

• Key Issue: When can a nonprofit challenge a state subpoena in federal court—before the state courts enforce it? Does merely receiving a subpoena (or even a government request letter) count as an actionable injury, especially if it chills associational/First Amendment rights?

• Implications:

  • Far-reaching for all nonprofits, not just abortion-related organizations.

  “It's a very important case for reasons totally unrelated to abortion... The growth of the state attorney general as sort of... an instrument of popular resistance to, and legal resistance to ideological opponents... is a pretty interesting and... dangerous modern development that's very thoroughly bipartisan.” (58:48, David)

• Analysis of Chilling Effect and Standing (60:41):

  • Whether the subpoena or the “threat” inherently chills First Amendment rights, and at what procedural juncture a challenge is allowed.

IX. Boat Strike Update: Accountability in Military Justice

• Listener Q&A (67:31):

  • Exploring how (and whether) military officers can be prosecuted for wrongful conduct when political leadership blocks prosecution.

• Key Takeaway:

  • Military justice is command-driven, not independent—the current administration controls charging decisions.
  • Pardons could be used for any court-martialable offense; change in command could theoretically revive prosecutions.

  “There is as a practical matter, if, even if the worst story is true, even if the worst version of the story is true, there's no path in the short term to prosecution here.” (71:18, David)

Notable Quotes & Memorable Moments

• Progressive Trust in Technocrats:

  “It’s almost like a touching level of trust, isn’t it, in sort of like the ability of technocrats to rise above it all. I mean, you look back at it and you almost want to say, oh, my sweet summer child, that is not how human beings work.” (36:28, David)

• Sarah’s “Radicalization”:

  “I have been fully CT radicalized on so many fronts, not just on the question of independent agencies. I've been radicalized on the severability question... I don't see how you can keep scalpeling out these areas in which this was part of the compromise that Congress made…” (20:57, Sarah)

• Spoils System Defense:

  “Life is trade offs. Don't assume that like they were just morons and that we're so enlightened with our non spoil system.” (55:09, Sarah)

• On the Law-Court-Politics Triangle:

  “Congress doesn't make laws anymore. The president does everything through executive order. It pulls the courts into our fights...” (63:27, Sarah)

Timestamps for Core Segments

| Timestamp | Segment | | --------- | ------- | | 00:19–04:37 | Setting the context and philosophical framework for administrative agencies | | 07:13 | Scalia’s “The wolf comes as a wolf” dissent | | 09:22–11:02 | Rebecca Slaughter and the procedural posture | | 12:51–14:44 | Circularity versus breadth of Supreme Court questions | | 16:36–21:19 | Current law, the FTC statute, and the severability debate | | 28:48–35:50 | Key precedents: Myers, Humphrey’s Executor, and their narratives | | 41:18–45:54 | Recent precedent (Seila Law), Thomas's position, and severability jurisprudence | | 49:10–55:57 | Remedies and standing, spoil system, and implications for federal employees | | 56:47–67:31 | First Choice Women's Resource Centers v. Platkin: Donor privacy and chilling effects | | 67:31–73:36 | Boat strike update: Military justice and political accountability | | 73:36–end | Sign-off and next episode preview |

Tone and Style

The hosts maintain their signature combination of deeply informed legal nerdery with wit and candor. Sarah is spirited and willing to press for radical remedies ("CT radicalized"), while David often fills the role of cautious institutionalist, focusing on practical and historical complexities.

In Summary

If you haven’t listened to the episode, this is the essential backgrounder for upcoming Supreme Court oral arguments on the power to remove FTC commissioners—and, more broadly, whether a century of administrative law will get upended. The debate traverses the roots of executive power, technocratic optimism versus originalist skepticism, and what effective remedies courts can grant for overreach. The episode closes with sharp analysis of a donor privacy subpoena case and an unsparing look at how real-world prosecutions in the military are subject to politics, not just law.

For More

Listen to the Advisory Opinions live episode immediately after the Supreme Court argument for up-to-the-minute breakdowns and reactions.