Appointment, Removal, and Ratification: Is the U.S. International Trade Commission Constitutional After Slaughter and Sidak?

Over the course of ten weeks in 2026, two decisions put the U.S. International Trade Commission (ITC) under constitutional pressure from opposite ends of Article II. In Sidak v. U.S. International Trade Commission, the U.S. Court of Appeals for the D.C. Circuit affirmed a permanent injunction barring the ITC from using against me an administrative protective order issued by an administrative law judge (ALJ) whose appointment the ITC conceded violated the Appointments Clause and whose actions the Commission had never ratified. Then, in Trump v. Slaughter, the Supreme Court held that the for-cause removal protection surrounding the Commissioners of the Federal Trade Commission was incompatible with the separation of powers and expressly overruled Humphrey’s Executor v. United States. One case concerns the appointment of inferior Officers; the other, presidential removal of principal Officers. Together, they unsettle the constitutional premise of an independent ITC.

First, Slaughter reaches the ITC because the ITC exercises executive power and fits neither the Federal Reserve exception nor the unresolved non-Article III category.

Second, Sidak exposes the appointment side of the same problem: the ITC placed executive authority in an Officer who held it unlawfully and failed to cure the defect even after Lucia v. SEC had placed the Commission on notice.

Third, the consequences extend to the tenure of the ITC’s Commissioners. If Slaughter supplies the general rule of at-will removal, a President may remove ITC Commissioners without cause. Even if for-cause protection somehow survived, I explain that maintaining executive authority in unconstitutionally appointed hands after controlling precedent placed the Commission on notice could constitute gross neglect of duty. A Chairman who appointed the Agency’s ALJs alone raises a separate problem, because the Constitution commits the relevant appointment authority to the ITC’s Commissioners collectively as Head of Department.

Fourth, to the extent any defect remains, the duty to cure it now rests with the Commissioners who hold office. In 2018, the Solicitor General identified rehearing, reconsideration, and ratification as available remedial measures, yet the ITC took none of them. After many Freedom of Information Act (FOIA) requests, I am aware of no record evidence that the acts of unconstitutionally installed ITC ALJs have been validly ratified, or even that every currently sitting ITC ALJ has been constitutionally appointed.

The larger question is not merely remedial; it is institutional. Who may exercise executive power, and under whose authority? Sidak shows what follows when the ITC places executive authority in unconstitutionally appointed hands; Slaughter explains why the Commissioners who direct that authority cannot be insulated from presidential removal. The two decisions point to the same rule of accountability. The ITC itself may constitutionally remain; an independent ITC may not.