Trump Asks Supreme Court to Let Him Fire FTC Commissioner (1)

President Donald Trump asked the US Supreme Court to let him fire the only remaining Democrat on the Federal Trade Commission, teeing up a case that could overturn a 90-year-old precedent and give the White House tighter control over federal regulators.

The appeal tests a 1935 Supreme Court ruling that said Congress could insulate at least some high-ranking officials from being fired. The Supreme Court’s conservative majority has chipped away at that ruling but so far has stopped short of directly reversing it.

The filing follows a federal appeals court decision Tuesday reinstating FTC Commissioner Rebecca Kelly Slaughter, who is challenging Trump’s attempt to oust her. The administration asked the high court both to allow Slaughter’s immediate removal and to grant full review and issue a definitive ruling.

The clash coincides with Trump’s effort to push out Federal Reserve Governor Lisa Cook for alleged mortgage fraud, a dispute that raises different legal issues. In the FTC case, Trump contends he has the constitutional right to fire Slaughter for any reason.

Trump sought to remove Slaughter from her position in March. She sued, arguing that her ouster flouted the FTC Act, which says a president can remove commissioners only for cause, such as inefficiency or neglect of duty. A federal judge in Washington ruled in her favor in July, and her status has been in limbo ever since.

Read More: FTC Commissioner Can Stay in Office for Now, Court Says

Her attempted removal represents the most direct challenge yet to the 1935 Humphrey’s Executor ruling, which stemmed from President Franklin Delano Roosevelt’s firing of a Republican FTC commissioner. The court’s ruling against Roosevelt paved the way for the independent agencies that came to proliferate across the US government.

Conservatives have long opposed Humphrey’s Executor as undermining the Constitution’s separation of powers, and they’ve gained traction in recent years. The Supreme Court ruled in 2020 that the president could fire the director of the Consumer Financial Protection Bureau, saying such a powerful executive branch figure has to be accountable to the president.

More recently, the Supreme Court has let Trump remove members of the National Labor Relations Board, Merit Systems Protection Board and the Consumer Product Safety Commission. The court suggested along the way that Trump’s power wouldn’t extend to firing Federal Reserve Chair Jerome Powell — at least in the absence of a legitimate reason like misconduct.

The Trump administration told the Supreme Court Thursday in the FTC case that the US Court of Appeals for the District of Columbia had flouted the high court’s earlier rulings.

“Lower court judges may sometimes disagree with this court’s decisions, but they are never free to defy them,” the administration argued, quoting from a recent opinion by conservative Justice Neil Gorsuch in a case involving federal medical research grants.

Defenders of Humphrey’s Executor say the Constitution gives Congress the flexibility to create agencies that rely on expert leadership and are independent from the White House.

The case is Trump v. Slaughter, 25A264.

(Updates with background on case and excerpt from filing starting in fourth paragraph.)

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

To contact the editors responsible for this story:
Sara Forden at sforden@bloomberg.net

Greg Stohr

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