Chief Justice John Roberts is allowing President Donald Trump to put a Joe Biden-appointed member of the Federal Trade Commission out of her post while the Supreme Court considers a longer-term resolution of the legal battle over her firing.
Roberts issued a one-page administrative stay Monday that temporarily set aside a federal appeals court’s ruling last week reinstating FTC member Rebecca Slaughter to her position.
The chief justice’s order contained no explanation of his decision, but it is the sort of order individual justices sometimes issue to freeze action in a case until all the justices have a chance to weigh in.
In March, the White House notified Slaughter that Trump had fired her. The e-mail dismissing her mentioned only the priorities of the new administration and did not cite any of the grounds Congress has established for firing an FTC member, namely, “inefficiency, neglect of duty, or malfeasance in office.”
Slaughter sued, claiming the firing was illegal. U.S. District Judge Loren AliKhan, a Biden appointee based in Washington, sided with Slaughter in July.
The Trump administration appealed AliKhan’s order and a panel of the D.C. Circuit Court of Appeals ruled last Tuesday that Trump lacked the power to remove Slaughter without citing any of the causes specified in the FTC’s century-old statute. The D.C. Circuit ordered Slaughter reinstated to her job, prompting the administration to file an emergency appeal to the Supreme Court. That appeal remains pending while Roberts’ administrative stay is in effect.
The Slaughter case is just one of numerous legal challenges over Trump’s ousters of Democrat-appointed leaders of executive branch agencies that Congress has sought to shield from political pressure. Most notably, a lawsuit over Trump’s attempt to fire Fed board member Lisa Cook is pending before a federal district judge.
In May, the Supreme Court allowed Trump to fire Biden-appointed members of two labor boards. Panels of the D.C. Circuit have also permitted Trump to fire several other Biden appointees who contended they are protected by law from being dismissed without cause.
But in the D.C. Circuit’s ruling reinstating Slaughter to her job, the majority on the three-judge panel said she had a stronger argument to remain in office than some of the other officials because a 90-year-old Supreme Court precedent known as Humphrey’s Executor specifically upheld Congress’ ability to limit presidents’ ability to fire members of the FTC.
The Supreme Court’s conservative majority has cut back on the application of Humphrey’s in recent years, holding that the president’s power under the Constitution to control the executive branch can in many circumstances eclipse congressional attempts to preserve agencies’ independence. However, the high court has never formally overruled Humphrey’s.
The Justice Department argued in its emergency appeal to the court last week that the duties and powers of the FTC have grown to such an extent over the past century that it is functionally no longer the same agency as the one addressed in Humphrey’s.
