Supreme Court appears poised to rule for Trump on independent agency firings

WASHINGTON — The Supreme Court on Monday appeared poised to side with President Donald Trump and allow him to fire a member of the Federal Trade Commission without cause, a provocative move aimed at upending the long-standing concept of independent federal agencies.

In a significant case on the structure of the federal government, the conservative-majority court heard oral arguments on whether Trump had the authority to fire Rebecca Kelly Slaughter notwithstanding a law enacted by Congress to insulate the agency from political pressures.

The 1914 law that set up the FTC says members can be removed only for “inefficiency, neglect of duty, or malfeasance in office.”

The court, which has a 6-3 conservative majority, has already signaled, with strong opposition from the three liberal justices, that Trump is likely to win the case by allowing Slaughter, a Democrat, to be removed from office while the litigation continues.

A ruling in Trump’s favor would have broad repercussions, not just for the FTC but also for a host of other federal agencies set up by Congress with similar removal restrictions, by giving presidents greater authority over them.

In addition to permitting Trump to fire Slaughter, the Supreme Court also allowed firings at some of the other affected agencies, further signaling that the majority favors Trump’s position.

There was little sign during Monday’s oral argument that the conservative majority would change its course, although some justices suggested some limitations on the president’s removal powers, especially as it relates to the Federal Reserve, which is the subject of separate litigation. The liberal justices remained united against the government’s arguments.

In ruling for Trump, the court could overturn a 1935 Supreme Court ruling called Humphrey’s Executor v. United States, which upheld those restrictions on the president’s power to fire FTC members.

In one exchange with Slaughter’s lawyer, Amit Agarwal, conservative Justice Neil Gorsuch said the Humphrey’s ruling was “poorly reasoned” and suggested he would be a vote to overturn it.

“There’s no such thing in our constitutional order as a fourth branch of government that’s quasi-judicial and quasi-legislative,” he said, referring to the idea that independent agencies do not fit within any of the three branches of government defined in the Constitution: the executive, Congress and the courts.

Likewise, fellow conservative Chief Justice John Roberts said the Humphrey’s ruling is a “dried husk” that stands for little because the FTC has changed so much in the intervening 90 years.

He appeared to agree with the Trump administration’s view that the agency now exercises more executive powers than it used to, meaning the president, as head of the executive branch, should have more authority over it.

The Supreme Court in 1935 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.

Another member of the conservative majority, Justice Brett Kavanaugh, echoed an argument made by opponents of independent agencies, saying they are not accountable to the people.

“They’re not elected as Congress and the president are and are exercising massive power over individual liberty and billion-dollar industries,” he said.

The justices went back and forth with Solicitor General D. John Sauer, who represented the government, about what limits the justices might impose on a potential ruling in Trump’s favor.

In addition to the Federal Reserve, they could exempt certain government bodies that have a mostly adjudicative role from a ruling for the administration, such as the tax courts and the U.S. Court of Appeals for Veterans Claims. (Although both are called courts, they are not part of the separate judicial branch.)

“It seems to me that there are very hard questions … about what the limits of your logic would be,” conservative Justice Amy Coney Barrett told Sauer.

The liberal justices all mounted a defense of the long-standing protections for independent agency members.

“You’re asking us to destroy the structure of government and to take away from Congress its ability to protect its idea that the government is better structured with some agencies that are independent,” Justice Sonia Sotomayor said.

Trump fired Slaughter and the commission’s other Democratic appointee in March. The FTC, which is responsible for consumer protection and antitrust enforcement, currently has just two of five commissioners, both Republican-appointed.

Since taking office in January, Trump has sought to dramatically remake the federal government by downsizing agencies whose missions he does not favor, withholding Congress-approved spending he opposes and firing thousands of career federal employees.

The MAGA movement and allied business interests have long targeted federal workers and the agencies where they work as a shadowy, unaccountable deep state.

Government bodies set up by Congress to be independent of the president have been a particular focus of the Trump administration. Many of those agencies wield considerable regulatory power and have long been loathed by business interests.

The U.S. Chamber of Commerce, the biggest business group in the nation, is among the organizations that filed a brief backing the administration over Slaughter’s firing.

Trump’s legal team has fully embraced a conservative legal argument called the “unitary executive theory,” which asserts that the president has the exclusive authority under Article 2 of the Constitution to exert executive power, including making regulatory decisions.

Trump has fired, without cause, members not just of the FTC, but also many other agencies that have power over vital health, safety, labor and environmental issues, including the Consumer Product Safety Commission, the Surface Transportation Board and the Equal Employment Opportunity Commission.

The administration has also gone further afield, asserting the power to fire officials in bodies set up by Congress that are not under the executive branch, including the Library of Congress.

Just last week, the administration added Trump’s name to the sign on the U.S. Institute of Peace in Washington, a private corporation created by Congress. Trump removed various board members upon taking office, with an appeals court allowing him to do so despite ongoing litigation.

The FTC firing dispute is one of a flurry of cases in which the Supreme Court has faced considerable criticism over how it has frequently ruled in favor of Trump via emergency orders without hearing oral arguments or issuing detailed rulings.

One significant exception in the firings context is Trump’s effort to remove Lisa Cook, a member of the Federal Reserve’s Board of Governors. In a May order, the court suggested that the Federal Reserve is different from other agencies because it is “uniquely structured.”

The justices will hear arguments in Cook’s case in January.