Supreme Court conservatives poised to back Trump in FTC firing case

Conservative U.S. Supreme Court justices signaled on Monday they will uphold the legality of Donald Trump’s firing of a Federal Trade Commission member and give a historic boost to presidential power while also imperiling a 90-year-old legal precedent.

The justices heard about 2-1/2 hours of arguments in the Justice Department’s appeal of a lower court’s decision that the Republican president exceeded his authority when he moved to dismiss Democratic FTC member Rebecca Slaughter in March before her term was set to expire. The court, which has a 6-3 conservative majority, has backed Trump in a series of cases since he returned to the presidency in January.

The conservative justices appeared sympathetic to the administration’s arguments that tenure protections given by Congress to the heads of independent agencies unlawfully encroached on presidential power. The liberal justices said the position taken by the administration in the case would lead to a massive increase in presidential power.

U.S. Solicitor General D. John Sauer, arguing for the Trump administration, urged the court to overturn a Supreme Court precedent in a 1935 case called Humphrey’s Executor v. United States that has limited presidential powers by protecting the heads of independent agencies from removal. The court in recent decades has narrowed the reach of this precedent but stopped short of overturning it.

Conservative Chief Justice Roberts told Amit Agarwal, a lawyer for Slaughter, that the FTC at the time of that decision was far less powerful than it is today, suggesting that the precedent is a relic of the past.

“Humphrey’s Executor is just a dried husk of whatever people used to think it was,” Roberts said of the ruling, which rebuffed Democratic President Franklin Roosevelt’s attempt to fire an FTC member over policy differences despite tenure protections given by Congress.

“It was addressing an agency that had very little, if any, executive power and that may be why they were able to attract such a broad support on the court at the time,” Roberts said of the unanimous ruling.

“Humphrey’s must be overruled,” Sauer told the justices, adding that this ruling stands as an “indefensible outlier” to the court’s other precedents that has “not withstood the test of time,” Sauer said.

Sauer said the existence of the Humphrey’s Executor precedent “continues to tempt Congress to erect, at the heart of our government, a headless fourth branch insulated from political accountability and democratic control.”

The U.S. Constitution sets up a separation of powers among the federal government’s coequal executive, legislative and judicial branches.

Liberal Justice Elena Kagan said the court should not ignore “the real-world realities” of what its decisions do.

“The result of what you want is that the president is going to have massive, unchecked, uncontrolled power – not only to do traditional execution, but to make law through legislative and adjudicative frameworks,” Kagan told Sauer.

“What you are left with is a president… with control over everything, including over much of the lawmaking that happens in this country,” Kagan added.

Sauer countered that the impact would be the president “having control over the executive branch, which he must and does have under our Constitution.”

Overturning or narrowing Humphrey’s Executor would bolster Trump’s authority at a time when he already has been testing the constitutional limits of presidential powers in areas as diverse as immigration, tariffs and domestic military deployments.

A federal judge and an appeals court earlier ruled against Trump. But the Supreme Court in September allowed Trump’s ouster of Slaughter to go into effect while agreeing to hear the administration’s appeal.

Independent agencies are government entities whose heads have been given tenure-protected terms by Congress to keep these offices free from political interference by presidents.

Liberal Justice Sonia Sotomayor said independent agencies have existed throughout U.S. history, and challenged Sauer to explain why the court should make such a drastic change to the structure of government.

“Neither the king, nor parliament nor prime ministers in England at the time of the founding (of the United States) ever had an unqualified removal power,” Sotomayor said, adding, “You’re asking us to destroy the structure of government and to take away from Congress its ability to protect its idea that a government is better structured with some agencies that are independent.”

A 1914 law passed by Congress permits a president to remove FTC commissioners only for cause — such as inefficiency, neglect of duty or malfeasance in office — but not for policy differences. Similar protections cover officials at more than two dozen other independent agencies, including the National Labor Relations Board and Merit Systems Protection Board.

Slaughter was one of two Democratic commissioners who Trump moved to fire in March from the consumer protection and antitrust agency before her term expires in 2029.

“We are asking the court to adhere to all of its precedents and to give effect to the collective wisdom and experience of all three branches of government,” Agarwal said. By contrast, Agarwal said, the administration is “asking you to abandon precedent after precedent, after precedent.”

Conservative justices posed sharp questions in response to Agarwal’s contention that the president has the absolute power to fire at will only the heads of U.S. agencies that wield core presidential powers, such as presidential authority over the military, law enforcement and foreign affairs.

They also pressed Agarwal to explain whether there were any limits on what Congress could do to transform executive departments into multi-member commissions like the one on which Slaughter served, and prevent the president from firing members at will.

Conservative Justice Brett Kavanaugh expressed concern to Sauer about threatening the independence of the Federal Reserve, the U.S. central bank.

Kavanaugh asked Sauer: “How would you distinguish the Federal Reserve from agencies such as the Federal Trade Commission?”

In another case involving presidential powers, the court will hear arguments on January 21 in Trump’s attempt to remove Federal Reserve Governor Lisa Cook, a move without precedent that challenges the central bank’s independence.

Liberal Justice Ketanji Brown Jackson expressed doubt that more presidential firing power is better for democracy.

“You seem to think that there’s something about the president that requires him to control everything as a matter of democratic accountability, when, on the other side, we have Congress saying we’d like these particular agencies and officers to be independent of presidential control for the good of the people,” Jackson told Sauer.

Jackson emphasized that centering so much power under presidential control would undermine issues that Congress decided should be handled by nonpartisan experts in independent agencies.

“So having a president come in and fire all the scientists, and the doctors, and the economists and the PhDs, and replacing them with loyalists and people who don’t know anything is actually not in the best interest of the citizens of the United States,” Jackson said.

Some of the justices asked questions about how far a ruling in Trump’s favor in Slaughter’s case would extend, potentially imperiling the job protections even for certain adjudicatory bodies like U.S. Tax Court and Court of Federal Claims.

Justice Department lawyers representing Trump have advanced arguments embracing the “unitary executive” theory. This conservative legal doctrine sees the president as possessing sole authority over the executive branch, including the power to fire and replace heads of independent agencies at will, despite legal protections for these positions.

The Supreme Court is expected to rule by the end of June.