Supreme Court to listen to main check of presidential energy over Trump’s firing of FTC commissioner | USAEMALL.com

Washington — President Trump’s efforts to reshape the executive branch and flex his presidential power are set to be tested at the Supreme Court on Monday, when the justices convene to hear a case that could lead to the dismantling of protections meant to insulate independent agencies from political pressure.

The case, known as Trump v. Slaughter, arose from Mr. Trump’s move to fire Rebecca Kelly Slaughter from her post at the Federal Trade Commission without cause, despite a federal statute that limits a commissioner’s removal to instances of inefficiency, neglect of duty or malfeasance in office. 

Now, the high court is set to decide whether those removal protections for members of the FTC violate the separation of powers, and whether it should overturn a landmark 1935 decision in a case called Humphrey’s Executor v. United States.

The legal battle is the culmination of a yearslong weakening of Humphrey’s Executor by the court’s conservative justices. In that 90-year-old ruling, which involved President Franklin Roosevelt’s attempt to remove a member of the Federal Trade Commission, the high court allowed Congress to shield certain independent agency members from being removed by the president at will.

But in several recent decisions, the conservative justices have chipped away at the precedent. Most recently, it ended removal protections for officials at the Consumer Financial Protection Bureau in 2020 and the Federal Housing Finance Agency in 2021.

Since Mr. Trump returned to the White House for a second term, he has sought to expand the bounds of presidential power and moved to fire a swath of Democratic-appointed members of independent boards and commissions. 

Trump’s firing of Slaughter

Slaughter was among the victims of the president’s campaign to “reclaim power from this unaccountable bureaucracy.” Appointed to the FTC by Mr. Trump in his first term and reappointed by Biden, she received an email in March with a message from the president informing her that her “continued service on the FTC is inconsistent with my Administration’s priorities.”

The president’s move to fire Slaughter and a fellow Democratic commissioner, Alvaro M. Bedoya, left the FTC with only three commissioners, who were all Republicans.

Slaughter, like many other independent agency leaders fired by Mr. Trump, sued to get her job back and argued that her removal was illegal. When Congress established the FTC in 1914, it said commissioners could be removed by the president only for inefficiency, neglect of duty or malfeasance in office. But Mr. Trump had not followed the law, she argued.

A federal district court ruled in her favor, finding that Slaughter’s removal was unlawful. It ordered her to be reinstated to her job at the FTC. But that decision was the first in a series of re-hirings and re-firings. Days after Slaughter prevailed before the district court, the U.S. appeals court in Washington, D.C., issued a temporary order allowing her removal. Weeks after that, the appeals court said Slaughter should be reinstated once again.

Then, when the Trump administration sought emergency relief from the Supreme Court, Chief Justice John Roberts cleared the way for her firing. The high court agreed in late September to hear the case and continued to keep her out of her post while it considers whether the removal protections for members of the trade commission violate the separation of powers.

What’s at stake

That issue, and the fate of its 1935 precedent, will be before the high court Monday, when the justices convene for arguments. 

“It’s very likely the Supreme Court is going to say that in order for the president to be able to do his job, to take care that the laws are faithfully executed, he has to have control of the people helping him execute those laws,” said Brian Fitzpatrick, a professor at Vanderbilt University Law School.

The Supreme Court’s decision could have significant ramifications for the structure of the federal government and curtail Congress’ power to impose limits on the president’s removal power.

“The president is supposed to have certain powers that are separated from the legislative branch, and if the legislative branch goes in there and says we’re going to interfere with your powers by saying you’re not allowed to remove these people, that’s a violation of the separation of powers,” Fitzpatrick said.

The Trump administration argued that the Constitution vests all executive power in the president and therefore grants him “illimitable” authority over officers who wield that power on his behalf. In a filing with the Supreme Court, Solicitor General D. John Sauer said that removal protections for members of independent agencies leave the president “saddled with subordinate officers” who prevent him from ensuring that the laws are faithfully executed.

While Congress’ power to structure the executive branch allows it to establish and organize departments under the president, it does not allow lawmakers “to establish a Fourth Branch that siphons executive power away from the chief executive’s control,” Sauer wrote.

Congress has created more than two dozen independent agencies that regulate many aspects of American life, from nuclear waste to telemarketing to consumer products, with removal protections that seek to shield their members from political pressure.

In its 1935 decision in Humphrey’s Executor, the Supreme Court recognized an exception to the president’s removal power for multi-member agencies with quasi-legislative or quasi-judicial powers. The high court found that the FTC fit within those parameters, and its commissioners could therefore only be removed for cause.

But the Trump administration argued that the trade commission of today is different from the agency of 90 years ago because it has amassed executive powers. The modern FTC executes more than 80 federal laws and regulates a broad range of matters, from meat products to contact lenses to credit cards, Sauer wrote.

Additionally, the FTC can now file civil suits seeking monetary penalties, make substantive rules, issue final orders in agency adjudications and investigate potential violations, he said.

“The notion that some agencies that exercise executive power can be sequestered from presidential control seriously offends the Constitution’s structure and the liberties that the separation of powers protects,” Sauer wrote.

Impacts of the court’s decision

If the Supreme Court invalidates the removal protections for FTC commissioners, such a decision is likely to reach far beyond the commission.

Because many statutes restrict a president to removing an official for inefficiency, neglect of duty and malfeasance in office, Fitzpatrick predicted the high court will “say those words are an unconstitutional restriction on the president so all the other agencies with those words will be in the same boat.”

Lawyers for Slaughter, meanwhile, warned of the broad impacts of a decision overturning the Supreme Court’s 1935 decision, writing in a filing that doing so would destabilize institutions that have been woven into the fabric of U.S. governance. 

“Multimember independent agencies are deeply ingrained in our Nation’s history and tradition, from the First Congress to the present day,” they said. “That history confirms that they are fully compatible with our Constitution’s text and structure.”

Slaughter’s legal team argued that the Trump administration is asking the Supreme Court to transfer new powers to the president that Congress chose not to give him and wants courts to “jettison longstanding laws enacted by the people’s elected representatives.”

They also said the current structure of multimember independent agencies — composed of members from both parties who serve for staggered terms and are insulated from political shifts — leads to “more modest actions” and therefore protects individual liberty better than an agency helmed by a single person.

“What the statutory protection for a member’s tenure guarantees is that a political minority, the minority party, will always be represented in deliberations, which is at the very least an important watchdog function,” said Peter Shane, a legal scholar at New York University School of Law.

He continued: “But the other thing is it prevents presidents from sabotaging agencies and sabotaging the congressional design, either by eliminating from the agency members of the minority party, or enough members so that an agency lacks a quorum to function at all.”

Mr. Trump has already attempted to make his mark on the Merit Systems Protection Board, which protects the rights of government workers. The president fired one of its members, Cathy Harris, in February, leaving the MSPB without a quorum between April and October.

“A president opposed to the statutory mission of an agency can entirely kneecap it by depriving it of a quorum, and the president can certainly deprive it of genuine bipartisanship by refusing to fill the seats that would belong to the minority party,” Shane said. “The minority signaling function is quite important and it has multiple audiences, including the majority on a particular commission. But it also includes journalists, the general public and the courts.”

Slaughter’s lawyers argued that even with protections in place for leaders of independent agencies, presidents can still exert influence over them through the candidates they nominate and the chair they select, as well as through recommending or vetoing spending bills that affect agency operations.

A key issue for the court will be how it characterizes the powers that an agency wields. When the Supreme Court earlier this year allowed Mr. Trump to fire members of the National Labor Relations Board and the MSPB, it suggested in an unsigned order that the agencies “exercise considerable executive power.” A divided panel of three judges on the U.S. Court of Appeals for the District of Columbia Circuit ruled Friday that removal protections for the two labor boards are unconstitutional and said Congress cannot restrict the president’s ability to remove their members.

Mr. Trump has also attempted to fire a member of the Federal Reserve Board of Governors, Lisa Cook. But the Supreme Court has so far allowed her to remain in her role, and the justices will hear arguments on the case next month.

“All the agencies these days have a lot of powers, adjudicatory powers, rule-making powers, enforcement powers,” Fitzpatrick said. “I suspect no matter how they do it, all the independent agencies with the exception of the Fed are going to be under the president’s thumb.”

But more than 200 members of Congress argued that multimember boards that are protected from at-will removal represent a longstanding compromise between the legislative and executive branches that should not be upset by the judicial branch. Invalidating for-cause removal protections would have drastic consequences for the structure and operation of the federal government, they wrote in a friend-of-the-court brief.

“[A]t-will removals of commissioners of independent agencies would lead regulated entities and the public to believe that the President is able to pick winners and losers in the American economy through intervening in individual cases,” they said. “That would detrimentally alter the way the public interacts with these regulators, and, consequently, the economic choices the regulators make.”