No, Trump v. Slaughter does not undo the EU-US data-transfer redress mechanism

On 29 June 2026, in Trump v. Slaughter, the U.S. Supreme Court held that the statutory protection shielding the commissioners of the Federal Trade Commission from removal at will is incompatible with the separation of powers, and, in doing so, it overruled the 1935 case of Humphrey’s Executor. Within hours the decision was said to reach well beyond the FTC. Attention turned at once to the Data Protection Review Court, the body at the center of the signals-intelligence redress mechanism created in response to "Schrems II," and on which the adequacy of the EU–U.S. Data Privacy Framework substantially depends. Among the first reactions was the claim that Slaughter “applies equally” to the DPRC, so that the redress mechanism falls with the FTC’s independence. As the analysis below sets out, that claim, whatever the effects of Slaughter on other parts of the Framework, does not withstand a reading of what the Court actually decided.

We have written about the legal mechanisms underpinning the DPRC since before it existed. In early 2022, we set out the redress deficiencies the Court of Justice of the European Union identified in "Schrems II" and asked what possibilities were available under U.S. law to cure them. We examined whether a new U.S. statute was really necessary, an approach presented at that moment by many advocacy groups as the only solution. We then examined how an independent authority with effective remedy powers could be created without a statute. In October 2022 when President Joe Biden’s Executive Order 14086 and the Department of Justice regulation appeared, we explained why the DPRC could meet the EU requirements of independence and effectiveness despite being created by executive rather than legislative action. The EU General Court subsequently upheld the mechanism in Latombe v. Commission, a judgment now under appeal.

Assuming the General Court was right about the DPRC, has Slaughter fundamentally altered the legal foundation on which that conclusion rests? In our view it has not, and the reasons lie in what the Slaughter decision actually held. We do not revisit the objections to the DPRC that the EU General Court considered and rejected in Latombe; we take its analysis as given and ask only what, if anything, Slaughter changes. 

One feature of the Framework’s architecture, so frequently forgotten that it is worth restating, makes what follows intelligible. The adequacy decision has two distinct dimensions. 

The first: a commercial dimension that concerns the obligations of the certified organizations that receive EU personal data under the Framework’s Principles and the supervision and enforcement of those obligations in the U.S., notably by the FTC. 

The second is government access concerning access to data by U.S. public authorities, in particular for national security and signals intelligence purposes and the limitations, safeguards and redress available to EU individuals in that respect, including the mechanism examined in this article. It was the second dimension and it alone that was at issue in "Schrems I" and "Schrems II": Both judgments turned on U.S. surveillance law and the effectiveness of redress for EU individuals, not on the commercial side. Slaughter, by contrast, concerns the FTC, a body that has never had jurisdiction over national security or signals intelligence. Whatever the decision’s effects, they can therefore bear directly only on the commercial dimension.

We do not address here the important and difficult questions Slaughter raises for the role assigned to the FTC as a supervisory body for commercial data transfers. Those questions have been at the center of the European reaction to date and that will require separate and careful analysis.

The legal mechanism the DPRC rests on

It is worth briefly recalling why the DPRC took the form it did, because the singularities of its form are what the equal application argument overlooks. As we explained at length in 2022, the obvious alternative, entrusting surveillance redress to the existing federal courts, was blocked by U.S. standing doctrine. Article III confines the federal judicial power to cases and controversies, and the Supreme Court’s decisions in Spokeo and then TransUnion v. Ramirez meant that many individuals would be unable to establish the injury-in-fact requirement for standing in the privacy context. No commentator has proposed a statutory scheme that would give all affected EU individuals access to a federal Article III court and satisfy EU law. 

A second alternative, a statute creating the DPRC, faced its own difficulties, including the near-certainty of U.S. litigation over the constitutional status of its judges under the removal-power case law. The route eventually chosen avoided such litigation challenges.

What was adopted instead was a mechanism built on two executive instruments — Executive Order 14086 and the Department of Justice regulation — and on a specific and well-established feature of U.S. law: that the executive is bound by the rules it makes for itself, for as long as those rules remain in force. The regulation confers the DPRC’s independence through its rules on appointment, with judges chosen from outside the executive, on defined criteria, for fixed renewable terms, and holding no other government office while serving; supervision, with no day-to-day supervision by the attorney general; and removal, permitted only for cause on enumerated grounds such as misconduct or incapacity.

The binding force of those constraints does not rest on the goodwill of the moment. In United States v. Nixon, the Supreme Court unanimously held that a Department of Justice regulation conferring authority on the Watergate special prosecutor had the force of law, and that so long as the regulation remained in force, the executive branch was bound by it. Nixon reaffirmed Accardi v. Shaughnessy. 

Accardi precisely concerned a body of adjudicators whose independence rested on an attorney general’s regulation. It held that so long as the regulation remained operative, the attorney general had denied himself the authority to direct their decisions, even though he could reassert his authority by amending the regulation through the proper process. Under State Farm, the regulation could not be repealed by fiat but only through the same public, reasoned procedure required to adopt it — an actus contrarius requirement, as one would say in Europe. An adequacy decision, therefore, could be made contingent on the regulation remaining in place, as indeed was decided by the EU Commission.

The General Court in Latombe accepted this mechanism. Crucially, it did not rest the DPRC’s independence on the formal source of its creation but on the substance of the guarantees surrounding the judges and on the settled principle that essential equivalence requires equivalent safeguards rather than identical institutional forms. That is the analysis we take as given here.

What Slaughter decided

Slaughter is a significant decision. Nothing here minimizes its significance, or, indeed, tries to justify it, although this article does try to explain it. The Court held the FTC’s for-cause removal provision is unconstitutional. In its own words, all it did was to “recognize what has been clear for a century:” that the principal officers who fall within the president’s “general administrative control,” because they exercise executive power in his name, must be removable by the president at will, through a removal power that flows from the Constitution in favor of the executive and that “cannot be modified, abridged, or diminished by the Congress.” On that basis it overruled Humphrey’s Executor and rejected the argument that multimember expert commissions of the FTC’s kind may be insulated from presidential removal.

Three features of the decision bear directly on the DPRC, and each is cited in the text of the six-Justice majority opinion.

First, the vice the Court identified is a congressional one. The separation-of-powers concern throughout is that neither Congress nor the courts may saddle the president with those with whom he cannot work; the operative statements are directed at limitations that Congress imposes on the president’s removal power. As described in the dissent by Justice Sonia Sotomayor, the majority adopted a “theory of unitary executive control.” Under the unitary executive approach, for the FTC, the congressional limit on executive power is unconstitutional.

Second, the Court expressly reserved the question of adjudicators. It stated that the permissibility of tenure protections for the judges of non-Article III courts, such as the Tax Court and the Court of Federal Claims, was not presented or briefed and posed a different set of questions, which it left for another day.

Third, the Court left standing the established exceptions on which the independence of other bodies depends: it did not overrule Morrison v. Olson or United States v. Perkins relating to protections for inferior officers, and indeed cited Morrison with approval for the proposition that the constitutional question does not turn on rigid categories, at least for inferior officers. It preserved the principle of Buckley v. Valeo, that a body exercising only powers of an investigative and informative nature, in aid of the legislative function, exercises no executive power and may be independent.

One further point is compelling for present purposes. Slaughter says nothing to disturb Nixon or Accardi. Neither was questioned; on the contrary, Nixon appears in the majority’s own closing lines among the major authorities confirming that the president “is not all powerful—not by any means.” The doctrine that the executive is bound by its own regulation while it remains in force emerges from Slaughter intact.

Why the decision does not apply equally to the DPRC

The equal application argument asserts that the prohibition on independence of FTC commissioners applies equally to a prohibition on independence of DPRC judges. Although proponents have not detailed why the prohibition would apply equally, one syllogism to support that argument would run as follows. The DPRC’s judges exercise executive power; Slaughter forbids limits on the removal of those who exercise executive power. Therefore, the President may now remove them at will. Each step of that reasoning fails, for three independent reasons.

First, the congressional target. Much of the European commentary has understandably read Slaughter as a step towards executive concentration, limiting independence whatever the legal source of such limitations. What Slaughter withdraws, however, is the power of Congress to shield an executive officer from removal. The unitary executive theory states a specific conception of democratic accountability and separation of powers: The elected and accountable president must be constitutionally protected against congressional encroachment. A president who limits his own removal power, and an attorney general who limits his own, take nothing from the presidency that the Constitution secures to it.

It is worth pausing to consider why an executive agency can impose limitations on itself. Self-imposed limitations are a pervasive feature of U.S. law. Consider a simple tax example: Suppose an Internal Revenue Service regulation provides that no penalty will be imposed if the taxpayer pays the amount due within 30 days. Once the agency has limited itself in this way, it gives up its previous ability to collect the penalty, and the taxpayer can go to court and win if the agency tries. The limitation is unilateral, and it binds for as long as the regulation stands. That is precisely the structure of the DPRC regulation.

The Slaughter decision does not challenge, still less prohibit, the executive’s decision to bind itself. The authority that governs executive self-binding, Nixon, remains good law and is cited approvingly and prominently by the majority. As we put it in 2022, the president has limited his own discretion by issuing the executive order, and those limits remain operative for as long as the order and the regulation remain in force. Slaughter does not touch that proposition.

Second, even if one accepts the majority’s observation that in-house adjudication of the FTC’s kind is an exercise of executive power — “no ifs, ands, or quasis,” as the opinion puts it — the majority expressly declined to decide the consequence for other sorts of adjudicators. 

As a non-Article III court, the DPRC is, by design and in function, an adjudicative body: It receives complaints, examines classified material, and issues binding determinations in a role we compared to that of European quasi-judicial oversight bodies such as France’s Commission nationale de contrôle des techniques de renseignement and Germany’s G10 Commission. The DPRC therefore falls within the category the Court declined to resolve, not within the holding it reached. A decision that expressly leaves a question open cannot at the same time be said to answer it against the body concerned.

Third, the protection of the DPRC’s judges is of a kind the decision leaves constitutionally permissible. The judges are appointed by a department head, the attorney general; they hold a narrow and defined jurisdiction; and they are removable only for cause. That is the classic profile of “inferior officers,” and Slaughter left intact the rule of Morrison and Perkins that inferior officers may be afforded for-cause protection. On that reasoning the DPRC’s tenure protections are not merely a self-imposed restraint that the executive chooses to honor; they are constitutionally unobjectionable in their own right.

These three observations all point in the same direction. The DPRC remains lawful after Slaughter based on any one of three distinct reasons: the lawfulness of self-limitation; the fact that DPRC judges are inferior officers and non-Article III courts are explicitly outside the scope of Slaughter. The proposition that Slaughter applies equally to the DPRC, so that the president may now remove its judges at will, is not supported by what the Court actually decided.

It may be objected that the logic or tone of the decision, whatever its holding, points towards a broader rule that could eventually sweep in executive adjudication by inferior officers. Language in the separate opinion by Justice Neil Gorsuch, joined by no other justice, might be seen as prelude to a broader rule. The other eight justices, however, rejected extending Slaughter to adjudicators or inferior officers. The five justices in the majority expressly reserved the adjudicator question and preserved Morrison and Buckley. The three dissenters would have held that the FTC commissioners retained for-cause removal. 

It would be speculation, contrary to the words of the Supreme Court, to contend that the eight justices have decided to ban independence for adjudicators who are inferior officers, and still less to prohibit the protections the executive has imposed on itself. The logic and language of the Slaughter opinion support the continued independence of the DPRC. We do not see any persuasive legal basis for declaring that the DPRC judges lost their independence due to Slaughter.

What has changed, and what has not

What has not changed is the specific U.S. law mechanism we described in 2022 and that the General Court accepted. The DPRC’s independence rests on a regulation that binds the executive while it remains in force; Slaughter concerns the power of Congress, leaves executive self-binding untouched, and preserves the exceptions under which the judges’ protection is permissible. The premise of the General Court’s analysis is therefore intact.

What has arguably shifted, if anything, concerns the design choice at the heart of the DPRC legal structure. When the redress system was being debated, many urged that only an act of Congress could produce a solution the European General Court and Court of Justice would accept. Our suggestion of basing independence on an Executive Order and regulation was, at the time, not universally accepted. The events since suggest that route had a resilience not fully appreciated then, and for a reason now visible: DPRC independence rests on the executive’s restraint of itself rather than on a command from Congress. It sits outside the category of removal restrictions that Slaughter addressed.

Conclusion

The suggestion that Trump v. Slaughter applies equally to the Data Protection Review Court is, with respect, not borne out by the decision. Slaughter withdrew from Congress the power to restrict the president’s removal of executive officers and overruled Humphrey’s Executor. It did not address the executive’s power to bind itself, and it left the authorities that govern executive self-binding, Nixon and Accardi, not only untouched but also prominently affirmed. It expressly reserved the question of tenure protections for adjudicators, and it preserved the inferior officer exception under which protection of the DPRC’s judges is constitutionally permissible. On each of the grounds that matters, the legal foundation of the DPRC that we analyzed in 2022, and that the General Court accepted, remains in place.

Nothing in this article prejudges the important and difficult questions the FTC's position raises for commercial oversight after Slaughter; they call for separate analysis.

There is, however, a structural consequence of our analysis that deserves to be highlighted because it has been absent from the debate since Slaughter was decided. In the architecture of EU data transfer law, the commercial and the government access dimensions of an adequacy finding have different implications for the survival of trans-Atlantic data flows. Standard contractual clauses, the Article 46 GDPR instrument under which most EU–U.S. transfers already take place, never depended on independent supervision by the FTC. Legal enforcement rests on contractual commitments enforceable by the data subject, the supervision of the exporter’s own European data protection authority, and the exporter’s duty to suspend transfers where the importer cannot comply. What "Schrems II" made decisive for SCCs and binding corporate rules is the treatment of government access to data. The safeguards established by Executive Order 14086, including the redress mechanism, protect transfers under any instrument, not only transfers to organizations certified under the Framework, as the EDPB explained.

The consequence is considerable. Suppose the adequacy decision were one day invalidated on commercial oversight grounds, a question on which we take no position here. In that case, organizations across Europe could continue to transfer data to the U.S. under SCCs and BCRs, relying on the government access safeguards upheld by the General Court in Latombe, whose foundation Slaughter leaves intact. A failure on the commercial side of the adequacy assessment would affect transfers that relied solely on the Framework, but other lawful data transfers could continue.

Nor would the redress mechanism itself lapse with the adequacy decision: Its availability to individuals in the EU rests on a distinct instrument, the designation of the European Union and the European Economic Area states as “qualifying states” under section 3(f) of Executive Order 14086, made by the Attorney General. The conditions on which that designation rests concern, in essence, the safeguards that EU law provides, in the conduct of signals intelligence activities, for the personal information of U.S. persons transferred to the EU, and an annulment of the adequacy decision on commercial oversight grounds would leave them unchanged. 

The only failure that would thus be fatal to trans-Atlantic transfers as such is a failure on the government access side, which is what "Schrems I" and "Schrems II" were about. That is why the continued adequacy of the redress mechanisms is legally important to the many organizations, on both sides of the Atlantic, that depend on lawful transfers.

Our conclusion is clear about the redress mechanisms for government access to data put in place by the DPF to address “Schrems II.” These mechanisms have been found to meet the requirements of EU law by the European Commission in the EU–U.S. adequacy decision, by the EDPB in its opinion on the decision, and by the EU General Court in the Latombe case. On the specific issue Slaughter decides, the removal of executive principal officers by the president, nothing has changed for the redress mechanism. For organizations that rely on the DPF, the immediate practical position is unchanged as well. The adequacy decision remains in force, transfers under it remain lawful, and prudent transfer practice should be unaffected by a decision that, on analysis, leaves the redress mechanism where it found it.