Agency Litigation Powers May Be in Trump’s Sights, Official Says

The Trump administration may target the independent litigation authority of federal agencies if the Supreme Court grants the president the power he seeks to fire executive branch employees at will, a senior Justice Department official said.

Federal law allows certain agencies like the Federal Trade Commission and the Labor Department to represent themselves in court, and in some instances to prosecute cases without requiring direct oversight from the White House. The independence is intended to insulate the agencies from political pressure.

That independence also makes it challenging for the president to direct their policy making, civil division head Brett Shumate said at the Federalist Society’s annual lawyers conference in Washington on Thursday.

“We don’t see their briefs. We don’t control their litigation,” said Shumate, who participated on a panel about the administration’s priorities. “But maybe that will change in the future if all these removal cases turn out in the president’s favor.”

The Supreme Court is scheduled to hear argument next month in Trump v. Slaughter, where the government is seeking repeal of the court’s 90-year-old decision in Humphrey’s Executor. The ruling upheld congressional limits on presidential authority to fire certain executive branch officials.

The justices previously lifted a lower court’s order blocking President Donald Trump’s decision to fire the plaintiff in the case, FTC Commissioner Rebecca Slaughter, as well as Democrat-appointed members of the Merit Systems Protection Board and National Labor Relations Board.

The administration has asserted authority over the legal opinions agencies may take. In a February executive order, Trump said no employee of the executive branch may advance an interpretation of the law in their official capacity that “contravenes the President or the Attorney General’s opinion on a matter of law.”

The order also directed the Office of Management and Budget to regularly review regulatory agencies’ obligations for consistency with the president’s policies and priorities.

Shumate said the civil division has been heavily occupied this year defending many of Trump’s assertions of executive power. Suits across the country challenging those moves have largely been put on hold over the past month amid the government shutdown.