Supreme Court to weigh Trump’s firing of FTC member in test of presidential power
By John Kruzel
WASHINGTON, Dec 5 (Reuters) – The U.S. Supreme Court will next week consider the legality of Donald Trump’s firing of a Federal Trade Commission member, in a major test of presidential power over agencies created by Congress to be insulated from White House control, in a case that could jeopardize a 90-year-old legal precedent.
The court will hear arguments Monday in the Justice Department’s appeal of a lower court’s ruling that Trump exceeded his authority when he decided to fire Democratic FTC member Rebecca Slaughter in March, before her term expired.
The case gives the court, which has a 6-3 conservative majority, an opportunity to overturn a New Deal-era Supreme Court precedent in a case called Humphrey’s Executor v. United States, which has protected the heads of independent agencies from impeachment since 1935.
Such an outcome would be welcomed by proponents of a conservative legal doctrine called the “unitary executive” theory, which holds that the president has sole authority over the executive branch, including the power to fire heads of independent agencies at will and choose their replacements.
Critics of this doctrine note that Congress has enacted protected mandates for heads of independent agencies to “keep these offices free from political interference.” Making these officials recallable at the president’s pleasure, they say, would threaten the regulatory stability that businesses, consumers and the American public rely on.
‘THE ADMINISTRATIVE STATE’
John Yoo, who served as a Justice Department attorney under former Republican President George W. Bush, said the Slaughter case presented “one of the most important questions of the last century about how the federal government works.”
“The future of the independence of the administrative state is at stake,” Yoo said, referring to the collection of federal agencies that regulate key aspects of American life and business, from finance to air traffic safety to labor relations.
Among proponents of the unitary executive like Yoo, now a professor at the University of California, Berkeley School of Law, a president’s power to fire executive branch officials “is of paramount importance because impeachment is the only tool by which a president can formally demand that his subordinates follow his orders.”
Supporters of the unitary executive have long asked the Supreme Court to overturn Humphrey’s Executor decision, which rebuffed Democratic President Franklin Roosevelt’s attempt to fire a member of the Federal Trade Commission over policy differences despite term protections granted by Congress. The Slaughter affair involves the firing of a Republican president by a member of the same agency, also due to political differences.
In the 1935 decision, the court said that restricting the president’s removal of commissioners was legal because the FTC performed tasks more closely resembling legislative and judicial functions than those belonging directly to the executive branch, headed by the president.
The Constitution established a separation of powers among the equal branches of the U.S. government: the executive, legislative, and judicial branches.
Reversing or restricting the tenure of Humphrey’s Executor would strengthen Trump’s authority at a time when he has already tested the constitutional limits of presidential powers in areas as diverse as immigration, tariffs and domestic military deployments.
THE ROLE OF CONGRESS
A 1914 law passed by Congress allows a president to remove FTC commissioners only for cause—such as inefficiency, neglect of duty, or misconduct in office—but not because of political differences. Similar protections cover officials at more than two dozen other independent agencies, including the National Labor Relations Board and the Merit Systems Protection Board.
Steve Schwinn, a law professor at the University of Illinois at Chicago, said an unfettered view of presidential recall authority fails to fully take into account the key role Congress plays in shaping government agencies.
“A president could argue that (broad removal power) makes agencies more responsive to the president’s policy preferences, and that this makes sense, given that the president sits at the apex of the executive branch,” Schwinn said.
“The problem with this way of thinking is that Congress also has a clear textual role in creating, granting authority, funding and even structuring agencies,” Schwinn added, referring to the Constitution. “It’s part of our system of separation of powers and checks and balances.”
RUNNING HUMPHREY’S EXECUTOR
The case tests whether the Court’s conservatives are ready to overturn another precedent, as they have done in major decisions in recent years, striking down abortion rights, rejecting race-conscious college admissions policies and ending the doctrine of deferring to U.S. agencies in interpreting the laws they administer.
In recent decades, the Supreme Court has narrowed the scope of Humphrey’s executorship, but has not gone so far as to overturn it. In a 2020 decision that upheld Humphrey’s, it said that Article II of the Constitution gives the president general authority to remove agency heads at will, but that Humphrey’s Executor decision had provided an exception that allowed protections against removal for cause for certain multi-member expert agencies.
If the court broadly strikes down tenure protections for agency heads, it would constitute “a sea change in law and practice,” said Erwin Chemerinsky, dean of the University of California, Berkeley, law school, adding that it would allow a president “to fire all the commissioners in all the agencies and replace them all.”
“There will be much less stability in the law,” Chemerinsky said. “Agencies will be seen as, and will be, part of implementing a president’s agenda.”
TRUMP’S FTC DRAWS
Slaughter was one of two Democratic commissioners that Trump decided to fire in March from the Consumer Protection and Antitrust Agency before his term expires in 2029. The firings drew criticism from Democratic senators and anti-monopoly groups, concerned that the move was intended to eliminate opposition to big business within the agency.
Washington-based U.S. District Judge Loren AliKhan in July blocked Trump’s firing of Slaughter, rejecting his administration’s argument that tenure protections illegally encroached on presidential power. In September, the U.S. Court of Appeals for the District of Columbia Circuit, in a 2-1 decision, upheld AliKhan’s ruling.
But later in September, the Supreme Court allowed Trump’s ouster of Slaughter — a move that sparked dissent from its three liberal justices — while agreeing to hear arguments in the case.
Lower courts ruled that statutory protections protecting FTC members from removal without cause were constitutional in light of Humphrey’s Executor precedent.
The Trump administration has argued that the modern FTC “unquestionably exercises executive power,” bolstering the argument that its members can be fired at will by the president.
Slaughter’s lawyers acknowledged that the FTC’s powers have increased since the Humphrey’s Executor decision. But citing Supreme Court precedent, they argued that the constitutionality of removal restrictions does not depend on the extent of an agency’s regulatory and enforcement power.
In May, the Supreme Court allowed Trump’s firing of officials at the National Labor Relations Board and the Merit Systems Protection Board — despite congressionally mandated job protections for those positions — while legal challenges continued.
In that decision, the court said the Constitution gives the president broad latitude to fire officials who exercise executive power on his behalf, and that the administration “is likely to show that the NLRB and MSPB exercise considerable executive power.”
Citing that justification in July, the court also allowed Trump to remove three Democratic members of the U.S. government’s top consumer product safety watchdog, while filing a legal challenge to their removal.
In January, the justices will hear arguments over Trump’s attempt to remove Federal Reserve Governor Lisa Cook, an “unprecedented move that calls into question the independence of the central bank.” Unlike Slaughter, the court left Cook in his position for the time being.
(Reporting by John Kruzel)
