Supreme Court considers case that could upend balance of powers : NPR
Rebecca Kelly Slaughter was nominated in 2018 to fill a Democratic seat on the Federal Trade Commission. She was removed from office by the Trump administration in March.
Elizabeth Gillis/NPR
hide caption
toggle caption
Elizabeth Gillis/NPR
The Supreme Court hears arguments Monday in a case that could end the independence of independent agencies, overturn 90-year-old precedent and reshape the balance of power between Congress and the president.
The question is whether President Trump can fire Rebecca Kelly Slaughter, whom Trump appointed in 2018, during his first term, to fill a Democratic seat on the Federal Trade Commission. President Biden nominated Slaughter for a second term, which was set to end in 2029.
Instead, in March, Slaughter received an email from the White House Office of Presidential Personnel informing her that she was being relieved of her position, effective immediately. He was told that “his continued service at the FTC is inconsistent with [the Trump] The administration’s priorities.”
Congress created the FTC in 1914 as a bipartisan, independent agency charged with protecting the U.S. economy from unfair methods of competition. By law, the five-member commission can have no more than three members from the same political party, and commissioners can only be fired for “inefficiency, neglect of duty, or malfeasance in the performance of their duties.”
Slaughter was given no reason for her dismissal, so she filed a lawsuit. A lower court said Slaughter was illegally fired from the FTC and ordered her to return to work. The Trump administration appealed the decision, and in September the Supreme Court issued an emergency order removing her from her seat until the merits of her case could be heard. The justices voted 6-3 along ideological lines to allow his dismissal to stand – for now.
Reconsider a 90-year-old precedent
President Franklin D. Roosevelt during a radio broadcast circa 1933-1940.
Harris & Ewing/Library of Congress
hide caption
toggle caption
Harris & Ewing/Library of Congress
Proving that history repeats itself, in 1933, President Franklin D. Roosevelt attempted to fire an FTC commissioner over ideological disagreements. In that case, called Humphrey’s Executor, the court unanimously ruled that while the president has the power to remove purely executive officers for any reason, that unlimited power does not extend to agencies like the FTC, whose functions “are neither political nor executive, but primarily almost-judicial and almost-legislative.”
Following this 1935 decision, Congress created many other independent, multi-member agencies whose members also can be removed only for cause. Since January, Trump has also removed Democratic members of some of these agencies, including the Equal Employment Opportunity Commission, the Merit Systems Protection Board and the Consumer Product Safety Commission.
In the case of Slaughter and others, the Trump administration argues that the Supreme Court’s decision in Humphrey’s Executor was wrong, due to a misunderstanding of the FTC’s functions at the time. The administration maintains that the FTC did indeed exercise executive power at the time and says those powers have only grown in the decades since.
During Trump’s first term, the Supreme Court undermined Humphrey’s executor by allowing Trump to fire the head of another independent agency, the Consumer Financial Protection Bureau. In that case, the Supreme Court ruled that the dismissal was permitted because the CFPB is run by a single director rather than a multi-member board of directors. Chief Justice John Roberts described Humphrey’s Executor as applying to multimember agencies “that do not exercise substantial executive power.”
On Friday, the D.C. Circuit Court of Appeals issued a decision consistent with those guidelines. In a 2-1 decision, the court said Trump’s firings of Cathy Harris, a member of the Merit Systems Protection Board, and Gwynne Wilcox, a member of the National Labor Relations Board, were legal, citing the “significant executive powers” of those agencies.
President Trump attends a press conference at the White House on December 2.
Andrew Caballero-Reynolds/AFP via Getty Images
hide caption
toggle caption
Andrew Caballero-Reynolds/AFP via Getty Images
A conflict of views on independent agencies
Slaughter believes it is vital that the Supreme Court preserves the independence of bipartisan, multi-member agencies and allows it to be reinstated.
“Independence allows these boards and commissions to make decisions based on substance, on facts and on protecting the interests of the American people,” she said. “This is what Americans deserve from their government.”
James M. Burnham, a lawyer who served in both Trump administrations, presented an opposing view.
“I don’t think there is an independent agency, because everything has to be in one of the three branches of government,” he argued. “I don’t think they were ever independent because I think the eviction protections have been unconstitutional from the beginning.”
The court will continue its deliberations over the executor of Humphrey’s estate on Jan. 21 when it considers another case involving Trump’s attempted firing of Federal Reserve Governor Lisa Cook.
