November 14, 2025

On November 13, 2025, a bipartisan group of eleven former Commissioners of the Federal Energy Regulatory Commission (FERC) filed an amicus brief at the U.S. Supreme Court. The brief seeks to preserve Congress’s authority to create and maintain bipartisan ratemaking commissions, including FERC.

The brief was filed in Trump v. Slaughter, a case about whether President Trump may fire a commissioner at the Federal Trade Commission (FTC) without cause. In Humphrey’s Executor, a 1935 decision, the Supreme Court held that Congress had authority under the Constitution to create multi-member agencies led by commissioners who could not be fired by the President, except for cause. Congress in the Interstate Commerce Act had limited the President’s power to fire commissioners only for “inefficiency, neglect of duty, or malfeasance in office.”

In the pending case, the President seeks to overturn the Supreme Court’s decision in Humphrey’s Executor by arguing that the FTC’s for-cause removal protections violate constitutional separations of power because the commissioners wield “executive power.”

The former FERC commissioners’ brief explains that Congress created several ratemaking commissions, including FERC, for setting prices charged by companies that control channels of interstate commerce and facilitating investment in important industries. The brief argues that these commissions’ for-cause removal protections “allow ratemaking commissions to sustain stable policies for the long-term benefit of regulated companies and American consumers.” The former  commissioners state that Congress has repeatedly referred to FERC’s ratemaking authority as “legislative,” thus it should remain immune from the President’s control.

The brief also argues that ratemaking commissions’ for-cause removal protections raise economic, legal, and practical issues that are beyond the scope of the FTC proceeding. The former commissioners state that this case is not an appropriate vehicle for upending Congress’s ratemaking model and, regardless of what the Supreme Court decides about Humphrey’s Executor, the Supreme Court should specify that its decision does not reach the special historical status of ratemaking commissions. The former commissioners argue that “FERC plays a direct role in our economy . . . . Prices set by FERC are essential inputs across the economy that directly affect the cost of living and doing business. Maintaining for-cause removal protections for ratemaking commissions exercising legislative power would appropriately defer to Congress’s powers over interstate commerce.”

The brief was signed by former commissioners: Elizabeth Anne Moler (1988-1997); Donald F. Santa (1993-1997); Linda K. Breathitt (1997-2002); Patrick H. Wood III (2001-2005); Nora Mead Brownell (2001-2006); Joseph T. Kelliher (2003-2009); Jon Wellinghoff (2006-2013); John Norris (2010-2014); Cheryl A. LaFleur (2010-2019); Neil Chatterjee (2017-2021); and Richard Glick (2017-2022).

The Supreme Court is set to hear oral arguments in Trump v. Slaughter on December 8, 2025.