WashU Law Professor Andrea Katz has filed an amicus brief in Trump v. Slaughter, for which the Supreme Court heard oral arguments on December 8. In the case, former FTC Commissioner Rebecca Slaughter argues that her dismissal by President Trump without cause contravenes the statute establishing the Federal Trade Commission in 1914. This statute intends for FTC commissioners to remain non-partisan and serve fixed terms, only removable for good cause.
WashU Law Professor Andrea Katz’s recent scholarship examines the historical context of the President’s removal powers, and provides a counter-narrative to the government’s originalist argument, which posits that the President has the inherent authority to remove executive officers based on an assumed historical consensus dating back to the framing of the Constitution.
“The government’s narrative,” Professor Katz argues, “is not only historically shaky, but it also attempts to extrapolate a presidential power from the silence of the constitutional text.” Her work shows that there is no definitive evidence from the eighteenth century to support the idea that the Framers imagined Article II’s silences to vest a sweeping presidential power to fire all government officers. Instead, she argues, the evidence suggests the Framers deliberately left the removal power open ended, to be shaped by statutes rather than a rigid constitutional mandate.
“I wrote this amicus brief because it’s important to share what we do and don’t know about removal under our Constitution,” Katz asserts. “In fact, on the best reading of the available eighteenth-century evidence, the Constitution’s silence on removal likely reflects the Framers’ intention to leave the resolution of this issue to future lawmakers through legislation that can adapt to changing circumstances.”
The government’s position hinges on viewing the removal power as a natural extension of the executive power, grounded in an assumed historical consensus from the ratification period. This interpretation suggests that the Framers saw no need to explicitly grant or limit this power in the constitutional text because it was implicitly understood as part of the executive function.
However, Professor Katz’s research challenges this retrospective perspective, proposing that statutory provisions should govern removal policies. Statutory law, unlike a judicially mandated rule, offers flexibility and the capacity to evolve in response to the demands of different periods and circumstances. Katz points out that a constitutionally enshrined removal power would diminish this legislative flexibility and effectively leave power to unilaterally alter the shape of agencies in the President’s hands, with limited checks on its exercise.
Her scholarly work is particularly significant in the ongoing Supreme Court deliberations, providing justices with a well-researched historical counternarrative that questions the validity of the government’s argument. By illuminating the uncertainties and the lack of consensus among the Framers regarding removal powers, Katz’s intervention underscores the importance of allowing legislative processes to shape these policies over time.
As the highest court examines the nuances of Trump v. Slaughter, Professor Katz’s scholarship from WashU Law may serve as a pivotal reference.
Professor Katz’s full brief is available here: https://aboutblaw.com/bkhR
Citation by Professor Kate Shaw, University of Pennsylvania School of Law, New York Times Op-Ed:
https://www.nytimes.com/2025/12/08/opinion/trump-supreme-court-agencies.html?smid=nytcore-ios-share
Citation by Robert Iafolla, Principal Legal Reporter, Bloomberg Law:
https://news.bloomberglaw.com/product/blaw/bloomberglawnews/exp/eyJpZCI6IjAwMDAwMTlhLWRiZmEtZDI5Ni1hZDllLWZiZmVmY2VmMDAwMSIsImN0eHQiOiJNUk5XIiwidXVpZCI6IkdpbnZlSXlCaWgySTJwQ3oxeHRobWc9PWFseUx6L3dDY2pZazlUQ0NkcEFZd3c9PSIsInRpbWUiOiIxNzY0ODY1NDYyMjQwIiwic2lnIjoiV2dIN25PaUZvV3pPeTgrdnFaaVJkWXlnZzNBPSIsInYiOiIxIn0=?source=newsletter&item=headline®ion=digest&channel=mergers-and-acquisitions
