The Year Ahead 2026: Scanning the Federal Litigation + Legislative Landscape

Whether a U.S. president can remove members of independent federal agencies (FTC, EEOC, NLRB) without cause and whether Humphrey’s Executor (1935) should be overruled.

Government position: The president should have complete control over the executive branch (the “unitary executive theory”), including the ability to terminate any member of executive agencies (here, FTC commissioners). Any laws that restrict this ability violate the separation of powers.

Respondent: Historically, Congress has created dozens of “multimember agencies whose members are protected from at-will removal.” Presidents have signed legislation creating, funding and empowering these agencies, and the Supreme Court has upheld the legitimacy of these statutes repeatedly.

The Supreme Court previously addressed this issue in its 1935 decision in Humphrey’s Executor v. United States. The Court in Humphrey’s Executor found the FTC “is an administrative body created by Congress to carry into effect legislative policies embodied in the statute[.] Such a body cannot in any proper sense be characterized as an arm or an eye of the executive.”

If removal protections are struck down, leadership at agencies like the EEOC and NLRB could change rapidly with each new administration, creating major regulatory uncertainty for labor law enforcement and workplace compliance. Potential expansion of Humphrey’s Executor doctrine could lead to greater political swings in labor and employment enforcement priorities, affecting union elections, unfair labor practice cases and EEOC systemic investigations.

Whether federal courts that exercise initial authority to adjudicate a case they stayed pending arbitration retain the power to confirm or vacate the resulting arbitration award.

Petition seeks to examine a Second Circuit’s order to enforce an arbitrator’s dismissal of employment discrimination claims against hotelier André Balazs, in addition to sanctions imposed on the plaintiff and his attorney for “beyond unusual” litigation misconduct.

Employers who utilize arbitration agreements will obtain clarity as to the appropriate forum for the enforcement of arbitration awards, potentially eliminating the need for litigation over a jurisdictional issue.

Whether state laws that seek to protect women’s and girls’ sports by limiting participation to “biological” women and girls (i.e., not transgender women and girls) based on sex violate the Equal Protection Clause of the 14th Amendment and/or Title IX.

The decision is unlikely to have an immediate impact on employers. At oral argument on Jan. 13, 2026, the Supreme Court seemed poised to allow the state laws banning transgender athletes from participating in girls’ and women’s sports to remain in place. However, as posited by Justice Brett Kavanaugh during oral argument, given the “scientific uncertainty[,]” the “strong assertions of equality interest on both sides” and wide disagreement amongst the states on the issue, the Court appeared reluctant to issue a ruling that would have broad application beyond the issue before them. A ruling allowing the state bans to remain in place would be consistent with the administration’s priorities as embodied in several executive orders issued in January 2025.