WASHINGTON — As counsel to amici Professor Victoria Nourse and Lawyers Defending American Democracy, Lawyers for Good Government (L4GG) filed an amicus brief in Donald J. Trump, et al. v. Rebecca Kelly Slaughter, et al., a case before the U.S. Supreme Court challenging the constitutionality of the Federal Trade Commission’s structure and threatening the future of independent federal agencies across government.
It argues that Humphrey’s Executor v. United States failed to recognize that independent commissions are old, not new. The conventional wisdom is that independent agencies have roots in the progressive era. This is incorrect, and in fact the Framers consistently turned to independent multi-member commissions.
L4GG and counsel of record Clifford M. Sloan of Georgetown University Law Center filed the brief on behalf of amici Professor Victoria Nourse, the Ralph V. Whitworth Professor in Law at Georgetown University Law Center and Director of its Center on Congress and Democracy, and nonprofit organization Lawyers Defending American Democracy.
Professor Nourse, a former appellate litigator at the Department of Justice and one of the nation’s foremost experts on Congress and its constitutional history, provides historical evidence demonstrating that independent, multi-member commissions date back to the Founding era.
The brief, which you can read in full here, argues:
Independent commissions date to the Founding. The Framers routinely created multi-member boards—such as the Revolutionary War Debt Commission and the Sinking Fund—to ensure impartial, fiduciary management of national affairs.
Congress has long exercised its authority to design agencies insulated from political interference. The first Congresses viewed independence as a tool for accountability and integrity, not as a threat to executive power.
The Founders valued independence as a safeguard of the rule of law. By charging certain commissions to act “faithfully and impartially,” early statutes reflected the Framers’ belief that impartial administration, not personal loyalty, was essential to the Republic.
"For too long, the Supreme Court's historical accounts of presidential power have left out the actual laws that Congresses passed and Presidents signed in the early Republic. This brief helps to correct the record,” said Professor Nourse.
“Independent commissions are not a modern invention—they’re as old as the Republic itself,” said Gary DiBianco, counsel at Lawyers for Good Government’s Pro Bono Litigation Corps and a co-counsel for amici. “From the earliest days of the Constitution, Congress and the President relied on independent boards to ensure fairness, prevent corruption, and preserve public trust. The Framers understood the importance of expertise and independence in safeguarding good governance.”
If you’d be interested in discussing the case and this brief further, we’d be happy to connect you to either of the co-counsel, Professor Nourse, or Lawyers Defending American Democracy.
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