Document Type
Court Brief
Publication Date
11-14-2025
Abstract
Summary of Argument:
When a statute is held unconstitutional, the ‘normal rule [is] that partial, rather than facial, invalidation is the required course.” Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 504 (1985). The Court should hold that the removal provision in section 41 is constitutional. But if the Court concludes that section 41 violates Article II, it should “limit the solution to the problem.” Ayotte v. Planned Parenthood of Northern New England, 546 U.S. 320, 328 (2006).
The gravamen of the government’s constitutional argument is that the FTC exercises substantial executive authority, and that because of section 41—in contravention of Article II—the President cannot control the Commission’s exercise of that authority because he cannot control (by direction, and if necessary by removal) the Commissioners who direct the FTC’s actions. But to control the actions of the FTC, a President needs only the ability to control the actions of a majority of its five Commissioners. A remedy according the President the power to remove at will three Commissioners would be sufficient to cure any such Article II violation. Application of the section 41 removal limitation to the other two Commissioners would be constitutional.
The First and Second Congresses both created multimember bodies which included minority members whom the President could not remove. That action is compelling evidence that the framers of the Constitution, many of whom were members of Congress in 1790 and 1792, did not regard such arrangements as inconsistent with Article II.
If the Court holds that section 41 violates Article II, the remedy should leave in effect the unchallenged portions of the statute. Section 41, like provisions of 50 other federal statutes, requires that the Commission be bipartisan, limiting to three the number of FTC Commissioners who may be members of the same political party. Such statutory requirements—which the government does not challenge—further a number of important purposes, including assuring a diversity of viewpoints among the members of these boards and commissions. To ensure the effectiveness of these statutory bipartisanship requirements, any remedy should provide that a President’s at-will removal authority is ordinarily limited to members of his or her own political party.
Recommended Citation
Eric Schnapper, Brief Amicus Curiae Regarding Presumption of Only Partial Invalidity on Behalf of Former Members of the Equal Employment Opportunity Commission on Behalf of Respondents, Trump v. Slaughter, U.S. Supreme Court (No. 25-332) (2025), https://digitalcommons.law.uw.edu/faculty-court-briefs/78