Supreme Court to Weigh 90-Year-Old Precedent and Let Trump Fire FTC Commissioner

As US President Donald Trump faces mounting accusations of authoritarian conduct, the Supreme Court's right-wing majority on Monday empowered him to proceed with firing a Democratic member of the Federal Trade Commission and agreed to review a 90-year-old precedent that restricts executive power over independent agencies such as the FTC.

Trump in March fired the FTC's two Democratic commissioners, Rebecca Kelly Slaughter and Alvaro Bedoya, without cause. Slaughter fought back, and US District Judge Loren AliKhan allowed her to return to work while the case continued. The Court of Appeals for the District of Columbia upheld that decision, but it was halted Monday by the nation's top court.

Monday's decision was unsigned, though the three liberals collectively dissented, led by Justice Elena Kagan. In addition to letting Trump move forward with ousting Slaughter, the majority agreed to reconsider the precedent established with Humphrey's Executor v. United States, a 1935 case that centered on whether the Federal Trade Commission Act unconstitutionally interfered with the executive power of the president.

In Humphrey's Executor, the high court found that Congress' removal protections for FTC members did not violate the separation of powers. Along with revisiting the precedent established by that landmark decision in December, the justices plan to weigh whether a federal court may prevent a person's removal from public office.

The court's stay allowing Trump to fire Slaughter was granted as part of the court's emergency process, or shadow docket. In a short but scathing dissent, Kagan noted that it is part of a recent trend: "Earlier this year, the same majority, by the same mechanism, permitted the president to fire without cause members of the National Labor Relations Board, the Merits Systems Protection Board, and the Consumer Product Safety Commission."

"I dissented from the majority's prior stay orders, and today do so again. Under existing law, what Congress said goes—as this court unanimously decided nearly a century ago," she wrote. In Humphrey's Executor, Kagan continued, "Congress, we held, may restrict the president's power to remove members of the FTC, as well as other agencies performing 'quasi-legislative or quasi-judicial' functions, without violating the Constitution."

"So the president cannot, as he concededly did here, fire an FTC commissioner without any reason. To reach a different result requires reversing the rule stated in Humphrey's: It entails overriding rather than accepting Congress' judgment about agency design," she argued. "The majority may be raring to take that action, as its grant of certiorari before judgment suggests. But until the deed is done, Humphrey's controls, and prevents the majority from giving the president the unlimited removal power Congress denied him."

More broadly, Kagan declared that "our emergency docket should never be used, as it has been this year, to permit what our own precedent bars. Still more, it should not be used, as it also has been, to transfer government authority from Congress to the president, and thus to reshape the nation's separation of powers."

Sandeep Vaheesan, legal director at the anti-monopoly think tank Open Markets Institute, slammed the court in a Monday statement.

"Today, in a one-paragraph order, the Supreme Court authorized President Trump's illegal firing of Commissioner Rebecca Kelly Slaughter and his ongoing destruction of the independent, bipartisan Federal Trade Commission," Vaheesan said.

"As Justice Kagan wrote in her dissent, Commissioner Slaughter was fired without cause and is clearly entitled to her position under the FTC Act and controlling Supreme Court precedent," he added. "The court could override Congress' decision to create an independent FTC on specious constitutional grounds but until it takes that step Commissioner Slaughter has a right to her job.”

While the justices agreed to take Slaughter's case, they turned away petitions from two ousted Democratic appointees referenced by Kagan: Cathy Harris of the Merit Systems Protection Board and Gwynne Wilcox of the National Labor Relations Board. According to SCOTUSblog: "The court did not provide any explanation for its decision not to take up Harris' and Wilcox's cases at this time. They will continue to move forward in the lower courts."

The New York Times noted that "the justices are separately considering the Trump administration’s request to remove Lisa Cook as a Federal Reserve governor. The Supreme Court has yet to act, but has suggested that the central bank may be insulated from presidential meddling under the law."

However, as Law Dork's Chris Geidner highlighted on social media, the second question the justices will consider in the Slaughter case, regarding courts preventing removals from public office, "would have implications even for the 'Fed carveout' exception that the court suggested exists."