THE SUPREME COURT WILL DETERMINE WHETHER THE PRESIDENT HAS LIMITLESS AUTHORITY TO FIRE ANY AGENCY LEADER, AT ANY TIME, FOR ANY REASON, DESPITE CONGRESSIONAL LIMITS THAT HAVE BEEN HONORED FOR ALMOST A CENTURY.
The Administration is waging war against the federal agencies established by Congress to protect Americans from threats to their health, safety, and financial well-being. An especially alarming aspect of that assault is the President’s removal of commissioners and other independent agency heads simply because of their political affiliation and without any cause related to performance and without due process. These terminations violate Congress’s statutory protections against at-will termination, and they threaten to degrade the ability of the agencies to pursue informed and balanced policies that best protect the American public. But that hasn’t stopped the Administration. Here’s a short recap of some of the closely watched cases involving unlawful removals.
Trump v. Cook, Case No. 25A312 (S. Ct.). President Trump has taken the extraordinary step of attempting to fire Lisa Cook, a member of the Board of Governors of the Federal Reserve, the single most important financial and economic policy regulator. Cook immediately challenged the removal and prevailed in the D.C. District Court, which held that Cook was likely to show her removal was unlawful because it violated the “for-cause” restriction in the Federal Reserve Act. The court also ruled that the purported termination likely violated Cook’s due process rights to notice and an opportunity to be heard. Cook v. Trump, Case No. 25-cv-2903 (JMC) (D.D.C. Sept. 9, 2025). The D.C. Circuit upheld the district court’s stay based on the due process argument. Cook v. Trump, Case No. 25-5326 (D.C. Cir. Sept. 15, 2025). The Administration has applied to the Supreme Court for a stay of the district court’s order that held in Cook’s favor, pending the full litigation over the legality of her termination. Cook filed her response in opposition to the stay on Thursday, September 25, and the President filed his response on Friday, September 26. We anticipate a decision from the Court soon as to whether the district court’s order will be stayed pending appeal.
Trump v. Slaughter, Case No. 25-332 (S. Ct.). President Trump has also attempted to remove Rebecca Slaughter from her position as a commissioner at the Federal Trade Commission (“FTC”), an important consumer protection agency. The district court ruled in her favor, enjoining her removal. Slaughter v. Trump, Case No. 25 – 909 (LLA) (D.D.C. July 17, 2025). The D.C. Circuit, after issuing a brief administrative stay, also sided with Slaughter. It held that the government was highly unlikely to prevail on the merits, given “controlling and directly on point Supreme Court precedent”:
Specifically, ninety years ago, a unanimous Supreme Court upheld the constitutionality of the Federal Trade Commission Act’s for-cause removal protection for Federal Trade Commissioners. See Humphrey’s Executor v. United States, 295 U.S. 602 (1935). Over the ensuing decades—and fully informed of the substantial executive power exercised by the Commission—the Supreme Court has repeatedly and expressly left Humphrey’s Executor in place, and so precluded Presidents from removing Commissioners at will.
Slaughter v. Trump, Case No. No. 25-5261 (D.C. Cir. Sept. 2, 2025). The Administration then applied to the Supreme Court for a stay of the district court’s order. On September 22, 2025, the Court issued the requested stay, with no explanation. It also “granted certiorari before judgment,” meaning that the Court has agreed to review the merits of the case this coming term, with oral argument to be held in December. The Court ordered the parties to brief these issues, placing the legality of for-cause removal restrictions front and center: “(1) Whether the statutory removal protections for members of the Federal Trade Commission violate the separation of powers and, if so, whether Humphrey’s Executor v. United States . . . should be overruled. (2) Whether a federal court may prevent a person’s removal from public office, either through relief at equity or at law. See Supreme Court’s Docket Entry Order of Sept. 25, 2025 in Case No. 25-332.
Note two additional recent Supreme Court rulings involving contested removals. On May 22, 2025, in Trump v. Wilcox, 145 S. Ct. 1415 (May 22, 2025) (D.D.C. and D.C. Cir.), the Supreme Court issued a 6-3, unsigned order granting the Trump Administration’s request for an emergency stay of the district court’s injunctions prohibiting the President from firing of members of the National Labor Relations Board and the Merit Systems Protection Board without cause. And on July 21, in Trump v. Boyle, Case No. 25A11 (S. Ct., July 23, 2025) (D. Md. and 4th Cir.), the Court stayed a lower court order requiring the reinstatement of three members of the Consumer Product Safety Commission (CPSC) that President Trump had fired without cause.
OTHER CASES WE’RE TRACKING
Multiple courts continue to wrestle with KalshiEX’s attempts to offer sports betting without compliance with state gaming law that offer important protections to those who gamble.
KalshiEX, LLC is a derivatives platform registered with the Commodity Futures Trading Commission (CFTC), the federal agency that oversees the futures and options markets. Those markets were established not to create new online gambling casinos but to allow commercial enterprises to hedge their risks, ultimately so that American consumers can count on stable prices for the goods they rely upon in their everyday lives, from groceries to gas. However, in July 2023, Kalshi self-certified an “event contract” that enabled unlimited gambling on the outcome of congressional elections. On September 23, 2023, the CFTC rightly rejected it as against the public interest but Kalshi went to court and persuaded a federal district court to rule against the CFTC and allow the contracts to be offered. KalshiEX LLC v. CFTC, Civil Action No. 23-3257 (JMC), 2024 WL 4164694 (D.D.C. Sept. 12, 2024).
Since then, the number of event contracts has exploded, including a wave of sports betting wagers. A number of states have challenged those contracts in court because Kalshi has steadfastly refused to comply with state gaming laws, which provide important licensing, disclosure, and age limit requirements that protect those engaged in sports wagering. Some federal courts, including those in Nevada and New Jersey, have sided with Kalshi at least preliminarily, holding that state gaming laws are preempted—i.e. have no effect—by virtue of the federal Commodity Exchange Act, the law governing futures and options trading. See, e.g., KalshiEx LLC v. Flaherty, Case No. 25-cv-02152-ESK-MJS, 2025 WL 1218313 (D. N.J. Apr. 28, 2025) (on appeal to the Third Circuit). However, in welcome development, the district court in Maryland ruled at least preliminarily that Congress never intended to preempt state gaming laws in this context. KalshiEX LLC v. Martin, Case No. 25-cv-1283-ABA, 2025 WL 2194908 (D. Md. Aug. 1, 2025). Kalshi has appealed to the Fourth Circuit, with briefing to proceed this Fall. Kalshi v. Flaherty, Case No. 25-1892 (4th Cir.).
Eleventh Circuit strikes down funding mechanism for a vitally important market surveillance tool, although a fix may be in the works.
On July 25, the Eleventh Circuit found that the SEC’s funding model for the Consolidated Audit Trail or “CAT,” a key market surveillance tool, was flawed. The grounds for the decision were 1) that the plan improperly allowed the securities self-regulatory associations to pass along all of their CAT-related costs to their members, and 2) that the SEC failed to update its economic analysis of the rule in light of large cost-overruns that had become apparent. American Securities Association v. SEC, 147 F.4th 1264 (11th Cir. 2025). However, although the court vacated the rule, it delayed the effective date of its opinion for 60 days from the court’s mandate to afford the parties time to address the problems identified by the court. Recently, a motion was filed asking the court to “extend the stay for an additional 90 days to give the SEC, CAT LLC, and the Participants additional time to address the Court’s ruling.” However, on September 22, 2025, the court denied that request.
Eighth Circuit wants SEC to disclose what it intends to do with its climate risk disclosure rule, an important pro-investor measure that the Administration has ceased to defend in court.
In March of 2024, and in response to wide-spread investor demand, the SEC finalized an important rule requiring companies to publicly disclose the climate risks they face that could affect their financial condition. The rule was challenged in numerous courts by a wide array of parties, including some states. Under the Trump Administration, the SEC has abandoned its defense of the rule, but the case goes on, as a number of intervenors have taken up the fight to protect the rule.
Recently, the parties have battled over who should go first: Should the Court proceed without delay to issue its decision on the validity of the rule or should the SEC first reveal whether it intends to rescind or modify the rule? On September 12, 2025, the Court made the call, ruling that in the interest of judicial economy (i.e. to spare the Court the effort of issuing a decision needlessly), it placed the case in abeyance until the SEC declares its intentions: “It is the agency’s responsibility to determine whether its Final Rules will be rescinded, repealed, modified, or defended in litigation.” State of Iowa v. SEC, Case No. 24-1522 (8th Cir.).
Department of Labor (DOL) wants more time to decide what to do with its “fiduciary duty” rule, which would help protect Americans from bad investment advice costing them billions of dollars a year in lost retirement savings.
In early 2024, the DOL finalized a strong new rule that would better protect retirement savers from advisers who dispense conflicted investment advice to pocket large commissions but saddle their clients with over-priced, under-performing, and risky products. The rule was challenged in court. Whether the rule should be stayed pending the litigation is now before the Fifth Circuit. However, under the Trump Administration, the DOL wants more time “to determine how to proceed in these appeals,” whether to abandon its defense of the rule or abolish or modify it. Accordingly, the parties have sought, and the court has granted, a stay on the litigation until at least October 14, 2025. Federation of Americans for Consumer Choice, Inc. v. DOL, Case No. 24-40637 (5th Cir.).
Fifth Circuit finds fault with SEC rules on securities lending and short selling but affords the SEC an opportunity to address the perceived defects.
In October 2023, and under rulemaking authority conferred by the Dodd-Frank Act, the SEC finalized two rules that require additional transparency and reporting regarding two types of common but largely opaque market activities: securities lending and securities short selling. Although technical in nature, the rules address concerns that these activities occur largely in the shadows yet can trigger episodes of instability in the markets that can hurt all investors. Both rules were challenged in court by the investment management industry.
On August 25, 2025, the Fifth Circuit issued its decision, finding that the rules were flawed because the SEC had failed “to consider and quantify the cumulative economic impact of the Rules.” National Assoc. of Private Fund Managers v. SEC, No. 23-60626, 2025 WL 2434051 (5th Cir. Aug. 25, 2025). However, rather than “vacate” the rules, i.e. nullify them entirely, the court decided to “remand” them back to the SEC: “For the foregoing reasons, we GRANT the petition for review in part and REMAND the Securities Lending Rule and the Short Sale Rule to the Commission to allow the agency to consider and quantify the cumulative economic impact of the Rules, consistent with this opinion.”
