A majority of justices on the Supreme Court on Monday appeared ready to let President Trump fire a Federal Trade Commission (FTC) member without cause, significantly limiting the independence of independent agencies.
The court’s conservative majority seemed skeptical that Rebecca Slaughter, the Democrat appointed commissioner who was dismissed, should not be allowed to be removed at Trump’s behest.
A win for Trump could eviscerate 90 years of Supreme Court precedent under Humphrey’s Executor v. United States that has enabled Congress to protect FTC commissioners and a handful of other federal agencies from firings at the White House’s whim.
“Humphrey’s Executor is just a dried husk of whatever people used to think it was,” said Chief Justice John Roberts.
Trump’s firing of Slaughter, who was appointed to the FTC in 2018, came earlier this year because her service was “inconsistent” with the administration’s policies.
“The President’s constitutional duty to execute the law does not give him the power to violate that law with impunity,” said Amit Agarwal, an attorney at Protect Democracy who earlier worked under Attorney General Pam Bondi as Florida’s former solicitor general.
Slaughter is among a dozen officials removed by Trump despite federal law providing them with for-cause removal protections, prompting several lawsuits.
She attended Tuesday’s argument alongside at least two others who were fired and have sued, National Labor Relations Board member Gwynne Wilcox and U.S. Copyright Office head Shira Perlmutter.
Lower courts have largely ruled against Trump, finding they are still bound by that 90-year-old Humphrey decision. But now that the fight has reached the Supreme Court, the only bench with authority to overturn its own precedents, Trump administration lawyers have held out hope that the conservative majority will do so.
Trump says the removal protections infringe on the separation of powers by preventing him from exercising his constitutional authority to oversee the executive branch.
Solicitor General D. John Sauer explicitly called for the justices to overrule Humprey’s Executor, contending it was “grievously wrong” when decided and has “not stood the test of time.”
“The sky will not fall,” he said. “In fact, our entire government will move towards accountability to the people.”
Agarwal, the attorney for Slaughter, said throwing out Humphrey’s Executor would result in “real world chaos and disruption.”
Before Slaughter’s case, conservative justices expressed skepticism about the precedent while picking apart the so-called “administrative state” in recent years. Justice Clarence Thomas wrote in a 2020 opinion joined by Justice Neil Gorsuch that Humphrey’s Executor “poses a direct threat” to the Constitution and, consequently, Americans’ liberty.
“I’ll put my cards on the table,” Gorsuch said Tuesday. “Maybe it’s a recognition that Humphrey’s Executor was poorly reasoned, and that there is no such thing in our constitutional order as a fourth branch of government that’s quasi-judicial and quasi-legislative.
“Maybe you’re trying to backfill it with a better, new theory,” he continued. “That itself recognizes that we’ve got a problem.”
Conservative and libertarian interests are supporting the administration, including the National Civil Liberties Alliance, the Cato Institute and the Pacific Legal Foundation. The Chamber of Commerce also filed a brief supporting Trump.
The Supreme Court’s three liberal justices posed piercing questions to the Trump administration at Tuesday’s argument, warning that overruling the decades-old precedent would hand the president unchecked power.
“What you’re saying is the President can do more than what the law permits,” said Justice Sonia Sotomayor, prompting Roberts to shoot daggers in her direction.
The most senior liberal justice also suggested the Trump administration was asking the court to “destroy the structure of government.”
Justice Elena Kagan wondered where the bounds of the president’s power would end if the limits the administration wants to eliminate are gutted.
“Once you’re down this road, it’s a little bit hard to see how you stop,” she said, positing that it’s a separate question of whether the government should have started down the road at all.
The result, she told Trump’s lawyer, is a president with “massive unchecked, uncontrolled power, not only to do traditional execution, but to make law through legislative and adjudicative frameworks.”
And Justice Ketanji Brown Jackson questioned how Congress fits into the picture — or whether the administration is seeking to cut the legislative branch from it altogether.
Jackson said that her understanding of Congress’s reasoning for creating independent agencies is that some matters should be untouched by politics, instead handled by nonpartisan experts who are not beholden to the president.
To replace them with “loyalists and people who don’t know anything” could counter Americans’ best interests, she suggested.
“I don’t understand why it is that the thought that the president gets to control everything can outweigh Congress’ clear authority and duty to protect the people in this way,” the most junior liberal justice said.
Trump first appointed Slaughter to a Democratic seat on the FTC in 2018. Former President Biden renominated her, and her new term was set to expire in 2029. But In March, Trump fired Slaughter.
In setting up the FTC, Congress prevented the president from firing commissioners except for “inefficiency, neglect of duty, or malfeasance in office.”
Trump does not purport to have one of those valid causes to terminate Slaughter. Instead, the White House told Slaughter her continued service “is inconsistent with my Administration’s priorities” without further explanation.
Slaughter’s fight is supported by outside briefs filed by the AFL-CIO, various former independent agency heads, left-leaning consumer advocacy group Public Citizen, 22 Democratic state attorneys general and roughly 200 Democratic members of Congress.
Her Supreme Court case precedes another pivotal case addressing the independence owed to agencies traditionally kept an arm’s length from the White House.
In January, the justices will consider Federal Reserve board of governors member Lisa Cook’s challenge to Trump’s attempt to fire her over mortgage fraud allegations, which she denies.
The Supreme Court has so far taken care to shield the Fed from the anticipated fate of other independent agency protections, but the arguments in Cook’s case could illuminate where those lines are drawn.
“The other side says that your position would undermine the independence of the Federal Reserve, and they have concerns about that,” said Justice Brett Kavanaugh, Trump’s second appointee to the court.
“And I share those concerns.”
This story was posted at 6 a.m. and updated at 1:52 p.m.
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