Administration asks Supreme Court to dump 1935 precedent in Trump FTC firing case

The case gives the court, which has a 6-3 conservative majority, an opportunity to overturn a New Deal-era Supreme Court precedent in a case called Humphrey’s Executor v. United States that has shielded the heads of independent agencies from removal since 1935.

‘INDEFENSIBLE OUTLIER’

“Humphrey’s must be overruled,” US Solicitor General D. John Sauer, arguing for the Trump administration, told the justices at the outset of the arguments.

Humphrey’s Executor 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 Constitution set up a separation of powers among the US government’s coequal executive, legislative and judicial branches.

“You’re asking us to overturn a case that has been around for nearly 100 years,” liberal Justice Sonia Sotomayor told Sauer.

Liberal Justice Elena Kagan told Sauer: “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.”

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

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. Sotomayor said independent agencies have existed throughout US 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.

Conservative Justice Brett Kavanaugh expressed concern to Sauer about threatening the independence of the Federal Reserve, the US 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.
“And I don’t understand why it is,” Jackson said, “that the thought that the president gets to control everything, can outweigh Congress’s clear authority and duty to protect the people in this way?”

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. Sauer sought to allay fears about giving the president more authority.

If these agencies are “made, subject to the political process, and the political discipline of being accountable to the president, the sky will not fall – in fact, our entire government will move towards accountability to the people,” Sauer told the justices.
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.

UNITARY EXECUTIVE THEORY

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.

Kagan pressed Sauer on whether the unitary executive position he advocates would authorize the president to fire civil servants who wield executive power despite job protections for lower-level federal workers.

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.

Washington-based US District Judge Loren AliKhan in July blocked Trump’s firing of Slaughter, rejecting his administration’s argument that the tenure protections unlawfully encroached on presidential power.

The US Court of Appeals for the District of Columbia Circuit in September in a 2-1 decision kept AliKhan’s ruling in place.

But the Supreme Court later in September allowed Trump’s ouster of Slaughter to go into effect – an action that drew dissents from its three liberal justices – while agreeing to hear arguments in the case.

OVERTURNING PRECEDENT

The case tests whether the court’s conservatives are willing to rein in or overturn the Humphrey’s Executor decision, which rebuffed Democratic President Franklin Roosevelt’s attempt to fire a Federal Trade Commission member over policy differences despite tenure protections given by Congress.

The Supreme Court in recent decades narrowed the reach of Humphrey’s Executor but stopped short of overturning it.

In a 2020 ruling, it said Article II of the Constitution gives the president the general power to remove heads of agencies at will but that the 1935 precedent had carved out an exception that allowed for-cause removal protections for certain multi-member, expert agencies. The Supreme Court is expected to rule by the end of June.