Running Away from History in Trump v. Slaughter

[This piece is cross-posted and was originally published in the Yale J. on Reg.: Notice & Comment blog.] On December 8, 2026, the Supreme Court will hear oral argument in the landmark case of Trump v. Slaughter. A fundamental issue in the case is whether the statutorily created office of Commissioner for the FTC can include partial restrictions on the President’s ability to remove a Commissioner. The government contends that the statutory removal restrictions impinge on an indefeasible Presidential removal power under Article II.  

While the Supreme Court’s recent decisions in Seila Law and Collins have recognized an indefeasible Presidential removal power for some officers, a flood of recent research has undermined historical arguments for a categorical rule that would extend removal at pleasure to all officers or all principal officers. For summaries of this historical literature see Chabot, Katz, Rosenblum & Manners, Nelson, Katz & Gienapp. (My latest paper, The Interstitial Executive: A View from the Founding, adds more fuel to the fire: it introduces a critical body of previously overlooked archival evidence to show that the Washington, Adams, and Jefferson administrations routinely complied with statutory removal restrictions in their officer commissions.)

The government’s reply brief banked on recent precedent from the Roberts Court. It leaned into Seila Law and the unitary understanding of the Decision of 1789 that the Court adopted in that case.  At the same time, the government offered an extension of Seila Law that would create further conflicts with the historical record.

Both Seila Law and the officers created pursuant to the Decision of 1789 involved departments led by single officers. Neither Seila Law nor the Decision of 1789 involved statutory tenure protections for officers serving on multimember commissions such as the Federal Reserve or the FTC. As a result, Seila Law is not necessarily at odds with historical evidence supporting these independent multimember commissions.  Some of the strongest Founding era examples of tenure-protected officers were those serving on multimember commissions such as the Sinking Fund Commission (described in my work here and here) and the Revolutionary War Debt Commission (described in recent work by Victoria Nourse as well as my new paper).  

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The Face of the Case: Obergefell Tells How He Became Part of Legal History

James Obergefell grew up in a blue collar, Catholic family in Sandusky, Ohio, got an undergraduate degree from the University of Cincinnati, and became a high school teacher.

“I was deep in the closet,” he said as he told his story during a program Wednesday, Sept. 18, 2024, in the Lubar Center at Marquette Law School. He came out in the early 1990s while he was in graduate school and met John Arthur. Within a short time, they considered themselves married. Legally, they were not – at the time, same sex marriage was not legal anywhere in the United States. But beginning in the mid -990s, they decided they wanted “marriage and everything that came with it,” as Obergefell put it.

Obergefell told Derek Mosley. executive director of the Law School’s Lubar Center for Public Policy Research and Civic Education, who moderated the conversation before a capacity audience of more than 200. how the legal landscape began to change, including a US Supreme Court decision in 2013 that struck down a federal law known as the Defense of Marriage Act. During the same period, Arthur’s health declined sharply after being he was diagnosed with ALS in 2012.

After the Supreme Court decision, Obergefell and Arthur decided to get married. Because Arthur’s health was so precarious, they needed to act quickly. And because legalities involving marriage varied across the country, they ended up taking a medical ambulance flight to the Baltimore/Washington airport in Maryland, where they could have a ceremony without ever getting off the airplane. Three months later, Arthur died.

What emerged from their marriage was a court case focused on whether Obergefell was the surviving spouse legally. And that case was joined with similar cases that ended up before the US Supreme Court, resulting in the landmark decision of Obergefell v. Hodges in 2015 which made same sex marriage legal throughout the United States. Obergefell recounted the events of the day the Supreme Court decision was issued. “I burst into tears” in the courtroom, he said. “For the first time in my life as an out gay man, I felt like an equal American,” he said. The audience applauded when he said that.   

Obergefell’s name became a big part of American legal history. And Obergefell himself moved from being a person of no prominence and no notable involvement as an activist into a continuing spotlight. It made him, as Mosley put it at the Law School program, “the face of the case,” someone who continues to be an advocate for rights of many kinds and someone who tells his personal story openly and with impact. Obergefell said he has realized how “stories matter — stories can change hearts and minds.”

“Going through something like this has a profound impact,” Obergefell told the audience. “It changes you.”

Obergefell said he is still motivated by anger over things he sees as wrong and the need to advocate for the rights of people facing many different situations. He also has less intense involvements, such as co-owning a wine label that has raised more than $250,000 for causes supported by him and the co-owner.

“Nothing makes me happier than to know that young people today are growing up in a world where the question of their right, their ability, to get married and have that relationship recognized is there.” Obergefell said.  “I had the absolute honor and privilege of being part of making things better for people younger than I am.”

Video of the one-hour program may be viewed by clicking below.

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The Stakes in Andy Warhol Foundation v. Goldsmith

Next week, the Supreme Court will hear oral argument in Andy Warhol Foundation v. Goldsmith, the first non-software fair use case the court has heard since 1994. This has copyright lawyers aflutter, as fair use law has been in increasing disarray for the last 20 years or so, and there is hope that finally the Supreme Court will give lower courts much-needed guidance. Unfortunately, I think the probability is higher of a mush-filled disaster of an opinion, like the one in Star Athletica v. Varsity Brands (2017), that not only gives no guidance, but eliminates the few stable boundaries we have.

That’s because fair use doctrine is a poor fit for the way modern courts operate, and there is probably little the Court can do to fix that, but a lot it can do to make the problem worse. But before I get there, I want to lay out in this post what’s at stake in AWF.

The case involves a licensing deal between celebrity photographer Lynn Goldsmith and Vanity Fair magazine.

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