AMICUS BRIEF

LDAD Files Amicus Brief in Support of Independent Regulatory Commissions

June 28, 2021

Dec 1, 2025

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Lawyers Defending American Democracy (LDAD) recently filed an amicus brief in Trump v. Slaughter, urging the U.S. Supreme Court not to treat all multimember independent regulatory commissions created by Congress as solely executive agencies that must be wholly controlled by the President.

The issue in Slaughter is whether Congress may limit the President’s authority to remove Federal Trade Commission (FTC) commissioners to termination for cause. A larger question, however, is whether the Court will issue a broad opinion that treats all 80 or so multimember commissions as subject to direction by the President, and any efforts by Congress to limit such control as unconstitutional. Among these entities are the Federal Reserve Board of Governors, the Federal Deposit Insurance Corporation, the  Consumer Product Safety Commission, and many others. 

LDAD's brief demonstrates that such a ruling would ignore more than two centuries of American history. Drawing on archival materials and a sweeping review of statutes from the 1780s onward, the brief shows that Congress and the Founders regularly created multimember commissions with features designed to provide some independence from political influence. 

“Congress has always had the power to create independent bodies that can make impartial decisions free from presidential control,” said Mitt Regan, McDevitt Professor of Jurisprudence at Georgetown University Law Center, a principal author of the brief and a member of the board of Lawyers Defending American Democracy. “The Founders built these structures themselves. Calling them simply ‘executive agencies’ today contradicts the very history the Court claims to rely upon.”

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