US Supreme Court seems ready to back Trump in case of fired FTC commissioner
Federal Trade Commissioner Rebecca Slaughter participates in a privacy roundtable at CES 2020 at the Las Vegas Convention Center on Jan. 7, 2020 in Las Vegas, Nevada. (Photo by David Becker/Getty Images)
WASHINGTON — The U.S. Supreme Court appeared ready to expand presidential power after hearing a case Monday on whether President Donald Trump can hire and fire members of independent federal agencies without cause.
The high court’s decision, expected by the end of the term in late June, could heighten presidential influence over agencies created by Congress that oversee monetary policy, nuclear safety, consumer advocacy and trade, among other major policy areas.
The court’s conservative supermajority speculated that Congress could wield more and more power over the executive branch regarding how independent multimember agencies are structured, for example establishing term limits for commissioners.
Oral arguments centered on a 90-year-old Supreme Court precedent protecting the five-member panel atop the Federal Trade Commission from being fired for reasons other than “inefficiency, neglect of duty, or malfeasance.”
The 1935 decision, referred to by its short title Humphrey’s executor, upheld the Federal Trade Commission Act’s removal protection provision after President Franklin D. Roosevelt fired FTC Commissioner William Humphrey before his seven-year term ended. He died shortly after, and his executor sued and won.
Slaughter fired in March
Monday’s case stems from Trump’s March firing of Rebecca Slaughter, an FTC commissioner since 2018, when she was named during Trump’s first term. President Joe Biden reappointed her and the Senate unanimously confirmed her for a second term in 2023.
Trump fired Slaughter on March 28 in an email that said her “continued service on the FTC is inconsistent with my administration’s priorities.” Slaughter sued and won in federal district court and at the Court of Appeals for the D.C. Circuit.
U.S. Solicitor General John Sauer argued to the justices Monday that Congress is “shaving away from the president’s control.”
The conservative justices homed in on Sauer’s argument.
In an exchange between Justice Amy Coney Barrett and Slaughter’s counsel, Amit Agarwal, Barrett said, “If we decide this case in your favor, we don’t know what a Congress in 15 or 20 or 30 years might do.”
Agarwal responded, “We haven’t seen this problem materializing at all.”
“The real world danger that is imminent right now, that we know will happen, and that is that if petitioners get their way, everything is on the chopping block,” he said.
A few minutes later, Justice Brett Kavanaugh challenged Agarwal’s argument that if the president wants a structural change to an independent agency, he or she can work with Congress.
“You’ve mentioned many times, you can just go to Congress to fix this. Well, once the power is taken away from the president, it’s very hard to get it back in the legislative process,” Kavanaugh said.
Agarwal disagreed and argued that “exactly the opposite” has happened, in that Congress has ceded power to the executive branch over time.
Debate over stability in agencies
Kavanaugh also took issue with Agarwal’s argument that statutory guardrails baked into laws that govern independent agencies provide stability across administrations.
Agarwal pressed back, calling it “a problem on steroids” if independent agencies were completely shaken up every time a presidential administration changes and staggered terms were ignored.
“The whole point of this structure is to guarantee a modicum of stability that private, regulated entities can depend upon, and that is jeopardized by at-will presidential removal,” Agarwal said.
Justice Ketanji Brown Jackson, one of three liberal justices, said the administration’s appeal to justices could “open the door for the president to come in, each new president, and clean house in terms of all of the individuals who are running that agency.”
“Notwithstanding their expertise and knowledge and experience and the things that they are doing to promote the mission of the agency,” Jackson said. “And presumably the president could install whoever he wanted in those positions.”
Argawal responded: “Think about it in terms of commissions like the Federal Elections Commission. Would anyone want those sensitive election-related determinations to be under the plenary control of a political actor?
“Think about the Nuclear Regulatory Commission. Can’t Congress and the president come together and say those types of technical determinations that could have massive implications for the public in all kinds of ways, should be made by a multimember body of experts?” he continued.
But during his rebuttal, Sauer warned of a scenario where “Congress could reconstruct virtually the entire executive branch outside the president’s control.”
Fed firing up next
The arguments lasted two-and-a-half hours and could be a preview of oral arguments in January that will center on Trump’s firing of Federal Reserve Board governor Lisa Cook.
The seven-member board governing the central bank sets U.S. policy, including interest rates. Trump has slammed Federal Reserve leadership for months for not lowering interest rates at a faster pace.
The case comes on the heels of a federal appeals court decision Friday that Trump “permissibly removed” members earlier this year from the National Labor Relations Board and the Merit Systems Protection Board.
The FTC was established in 1914 under President Woodrow Wilson to protect consumers from unfair business practices.
Sauer, formerly the Missouri solicitor general, was previously the president’s own defense lawyer and argued on Trump’s behalf before the Supreme Court last year on the question of presidential immunity.