Supreme Court to Weigh Expanding Presidential Power to Fire (3)

The US Supreme Court said it will hear a Trump administration appeal that could topple a 90-year-old precedent and put the White House in control of federal agencies that have long been independent.

The court’s conservative majority also refused to let the person at the center of the case, Federal Trade Commission member Rebecca Kelly Slaughter, return to her job during the appeal. President Donald Trump is trying to fire Slaughter despite a law that says commissioners can be removed only for specified reasons.

The showdown gives conservatives and regulation opponents the chance to achieve a long-sought goal and overturn the Supreme Court’s 1935 Humphrey’s Executor ruling. That decision allowed the FTC job protections and opened the way for the independent agencies that came to proliferate across the federal government.

The decision to let Trump fire Slaughter temporarily drew a pointed dissent from the court’s three liberals, who said the majority was abusing the court’s emergency docket. That docket shouldn’t be used “to transfer government authority from Congress to the president, and thus to reshape the nation’s separation of powers,” Justice Elena Kagan wrote.

In addition to revisiting Humphrey’s Executor, the court said it will consider whether federal judges have power to prevent the president from firing a public official. The administration contends that, even if a person is wrongly fired, the most a court can do is to award back pay.

A ruling for the administration on that issue could affect Trump’s high-stakes bid to oust Federal Reserve Governor Lisa Cook for alleged mortgage fraud.

The court earlier this year hinted that it would preserve the Fed’s independence, calling it a “uniquely structured, quasi-private entity.” But that case stemmed from Humphrey’s Executor, not the separate issue of the remedies federal judges can impose for a wrongful firing.

Trump has repeatedly blasted Fed Chair Jerome Powell for not moving fast enough to lower interest rates.

Critics say Humphrey’s Executor undermines the separation of powers by leaving powerful executive branch officials unaccountable to the president. Defenders say the Constitution gives Congress the flexibility to create agencies that rely on expert leadership and are insulated from political pressures.

The court said it will hear arguments in the case in early December.

The Supreme Court’s conservative majority has chipped away at Humphrey’s Executor in recent years. The Supreme Court ruled in 2020 that the president could fire the director of the Consumer Financial Protection Bureau.

More recently, the court let Trump at least temporarily remove members of the National Labor Relations Board, Merit Systems Protection Board and the Consumer Product Safety Commission. The court on Monday separately said it won’t simultaneously take up the NLRB and MSPB cases.

Trump sought to remove Slaughter from her position in March. She sued and won key rulings in the lower courts. But Chief Justice John Roberts on Sept. 8 let Trump oust her temporarily, and the latest order means she won’t return at least until the Supreme Court issues a final ruling.

Slaughter contends her ouster flouts the FTC Act, which says a president can remove commissioners only for “inefficiency, neglect of duty, or malfeasance in office.”

In seeking to toss out that restriction, the administration says the Supreme Court doesn’t necessarily need to overturn Humphrey’s Executor. Solicitor General D. John Sauer told the justices that the modern FTC is far more powerful than the one the court shielded from presidential control in 1935.

Congress has “transformed” the FTC “into an agency that wields substantial executive power,” he said.

But Sauer also wrote that “to the extent this court concludes that Humphrey’s Executor remains controlling, this court should overrule it.”

In ruling that Slaughter could stay in the job temporarily, a federal appeals court said Trump was asking that panel to “defy binding, on-point, and repeatedly preserved Supreme Court precedent.”

The case is Trump v. Slaughter, 25A264.

(Updates with decision not to simultaneously take up other cases in 12th paragraph. A previous version corrected a reference to the Humphrey’s Executor case.)

--With assistance from Leah Nylen.

To contact the reporter on this story:
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editor responsible for this story:
Elizabeth Wasserman at ewasserman2@bloomberg.net

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