Going back nearly 130 years, presidential appointees to an array of multimember federal administrative agencies have been given statutory for-cause protections against dismissal. And for more than ninety of those years these protections had the constitutional imprimatur of Humphrey’s Executor v. U. S. Last January I warned in these pages that if, as then expected, the Supreme Court overturned Humphrey’s Executor, it would not just mean loss of job security for political appointees to numerous federal commissions and boards. Its logic would “alter the bipartisan structure of these agencies” and could even threaten their very ability to operate. Well, the expected happened and the threat has since become more real.

            In late June, the Supreme Court issued its opinion in Trump v. Slaughter, upholding President Trump’s constitutional right under Article II to fire Rebecca Slaughter, a member of the Federal Trade Commission. In the process, the Court had overturned its own unanimous ninety-one year old precedent in Humphrey’s  Executor. But as I wrote in January, the reach of Humphrey’s Executor to other multimember agencies had already been called into question by Space Exploration Technologies Corp. v NLRB(SpaceX), a 2025 Fifth Circuit opinion upholding three lower court preliminary injunctions blocking the NLRB from investigating unfair labor practices.

The SpaceX decision included a caveat. It upheld the preliminary injunctions on grounds that the for-cause protections given NLRB members were likely unconstitutional and that the agency’s unconstitutional structure likely rendered its investigations unconstitutional, too. But it left for final merits resolution by the trial courts whether the objectionable for-cause protections for Board members were severable from the rest of the statutory scheme.   

The plaintiffs in two of those cases have since gotten their answers.

The first came in May, a month before the Supreme Court’s Slaughter decision. The for-cause protections for Board members, wrote federal district court judge Pittman in Aunt Bertha v NLRB, were not severable. “[B]ecause the constitutional problem is produced by multiple layers acting in combination,” he reasoned, “there is no single provision the Court can excise to cure the defect. Any potential fix would require the Court to decide which layer to remove—Board-member tenure, ALJ good-cause protection, Merit Systems Protections Board (“MSPB”) adjudication, or some combination thereof.” “When the remedy depends on selecting among competing institutional designs, the Court is no longer severing,” he concluded, “it is reconstructing or legislating.”

On July 27, 2026, Judge Mazzant of the Eastern District of Texas reached the opposite conclusion. Writing in Aimbridge Employee Serv. Corp. v. NLRB,  he concluded that the for-cause protections against dismissal given to NLRB members, administrative law judges and members of the Merit System Protection Board were unconstitutional. But he agreed with the government that these provisions were severable. Citing both (1) the Supreme Court’s decision in Alaska Airlines, Inc. v. Brock establishing a presumption of severability where “what is left is fully operative as a law,” and (2) the express severability provisions in the National Labor Relations Act,  the judge concluded that the offending provisions could all be severed while leaving the rest of the NLRA intact.

To be sure, the district court’s opinion in Aunt Bertha was predicated on the conclusion that even Humphrey’s Executor did not cover the NLRB’s for-cause dismissal provisions. (The district court in Aimbridge reached the same conclusion but noted that any dispute on the issue had been rendered moot by the Supreme Court’s decision in Slaughter.) But with the demise of Humphrey’s Executor there is little to distinguish the NLRB from agencies like FERC, the SEC, the FTC the Consumer Product Safety Commission and other multimember agencies that give tenure protections both to their board/commission appointees and to the administrative law judges they employ. Indeed, the same basic issue teed up in both Aunt Bertha’s and Aimbridge – whether the agency’s authority to conduct investigations was constitutional – is directly before a federal district court in North Carolina.

As I wrote back in January, American Energy Efficient LLC, et al. v. FERC involved a suit by a company seeking a halt to FERC’s investigation of its energy trading practices. The Court there had rejected the plaintiffs’ claim that the investigation impeded their constitutional right to a jury trial. But at the request of both FERC and the plaintiffs, the court had put on hold the plaintiffs’ additional claim — that the for-cause protections accorded FERC commissioners rendered the investigation itself unlawful  — until after a Supreme Court decision in the Slaughter case.[1] In early July, following issuance of the Slaughter opinion, the plaintiffs gave notice to the court of that decision, stating that they were “evaluating next steps.”[2] It is not hard to imagine what those next steps might be. Judge Pittman’s decision on severability certainly provides one roadmap.

It is also not hard to imagine what other arguments future plaintiffs might make in challenging the constitutionality of the actions of multimember agencies. As I wrote in my January post, the for-cause protections given appointees of formerly independent administrative agencies were also typically coupled with provisions limiting a president to naming no more than a simple majority of agency members from the same political party and giving the appointees staggered terms.  This overall design was aimed at insuring the agency’s independence, creating policy stability and reducing the influence of partisan politics. If independence was a core feature of the agency’s design, would Congress have intended the survival of the agency’s functions if it could no longer function that way? That, it seems to me, is at least as convincing an argument against severability as the reasoning behind Judge Pittman’s decision.  And it should surprise no one if it is invoked by parties averse to the missions of these formerly independent agencies. Indeed, they are likely to point out that the severability provision found in the NLRA (and relied upon in part by Judge Mazzant in the Aimbridge case) is absent from both the Federal Power Act and the Natural Gas Act, the two major statutes administered by FERC.

To be clear, I hope fervently that such arguments ultimately will fail, as they did in the Aimbridge case. And I hope that the lower courts will accept the proposition that “Congress would have preferred a dependent [agency] to no agency at all,” as the Supreme Court did in Seila Law v CFPB, where it severed the for-cause removal provision from the statute creating the Consumer Financial Protection Bureau, But I fear that the Supreme Court has not fully considered the potential real-world consequences that might flow from its rigid view of executive authority under Article II. Slaughter already gives presidents the green light to fire enough board members or commissioners to rob an agency whose mission they may not support of a working quorum – a power President Trump exercised multiple times even before the reversal of Humphrey’s Executor. But Slaughter also provides ammunition for parties to disrupt or disable agency functions as unconstitutional even where a president has not exercised the right to fire agency appointees. Former independent agencies like the FTC, FERC, SEC, CFTC, EEOC and many others fill important roles in our complex society. Let’s hope they survive the upheaval and havoc Slaughter may well foster.

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[1] American Efficient LLC v. FERC, No. 1:25-cv-00068-JEP Order (Feb. 23, 2026 M.D N.C.)

[2] American Efficient LLC v. FERC, No. 1:25-cv-00068, Notice of Supplemental Authority (filed July 6, 2026)

Harvey L. Reiter is Senior Counsel at Stinson LLP, where he specializes in appellate law, antitrust, and competition issues affecting regulated industries.