President Trump wants the high court to overturn a 1935 ruling that limited the president’s power to fire executive branch leaders.
Supreme Court approves President Trump’s dismissal of FTC commissioner
In a divided order, the Supreme Court cleared the way for President Trump to fire Federal Trade Commission Commissioner Rebecca Kelly Slaughter.
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WASHINGTON – President Donald Trump’s attempt to shore up his power by taking control of an independent agency will be heard by the Supreme Court on Dec. 8, the second of at least four major cases concerning his expansive view of presidential powers that the justices are considering this session.
President Trump wants the court to overturn a 1935 ruling that limits the president’s power to fire the leaders of multimember executive agencies, including the Federal Reserve and the Federal Trade Commission.
His wish may come true, as the court has been slowly revising the ruling since 2010.
And even if the court’s conservative supermajority does not completely reverse the ruling, it is expected to further narrow its scope and reshape the balance of power between the president, independent federal agencies, and Congress.
At the very least, the justices could grant Mr. Trump control of the Federal Trade Commission, which enforces a variety of antitrust and consumer protection laws that affect virtually every area of commerce.
Many other agencies could be affected, including the Federal Reserve and agencies that enforce campaign finance laws, protect workers, combat fraudulent business practices, regulate broadcast and broadband services, and investigate airline and traffic accidents.
“This case marks a pivotal moment for the separation of powers and could redefine how dozens of government agencies operate,” said Val Chirakamari, a former Justice Department attorney who now works at the law firm K&L Gates.
Conservatives promote “single executive theory”
These bodies were established by Congress to be led by politically balanced, fixed-term committees of experts.
But under the “unitary executive theory,” long advocated by conservatives, the Constitution gives the president complete control over executive functions, including the power to dismiss commissioners. Otherwise, conservatives argue, government agencies are not sufficiently accountable to the public, a shortcoming that has led to what critics call an “administrative state.”
“Congress has the power to create a vast and diverse executive branch bureaucracy, but it cannot place that bureaucracy outside of the president’s responsibility,” said Oliver Dunford, an attorney with the libertarian group Pacific Legal Foundation.
President Trump tried to fire leaders of multiple government agencies.
After taking office, President Trump declared all federal agencies under his control.
In March, President Trump fired two of the five-member Federal Trade Commission board, Democrats Rebecca Kelly Slaughter and Alvaro Bedoya.
Lower courts relied on the Supreme Court’s 1935 Humphreys Executor v. United States decision to say that President Trump can only fire FTC commissioners for misconduct, which Trump has not asserted.
The court issued similar rulings regarding the president’s firing of Democratic members of the Consumer Product Safety Commission and two federal labor committees.
However, the Supreme Court intervened and allowed these challenged dismissals to proceed. The court also agreed to quickly determine whether the removal protections Congress provided for FTC commissioners are consistent with the Constitution’s separation of powers.
Separately, the court agreed to hear arguments in January about Trump’s ability to fire members of the Federal Reserve Board if it determines they have done something wrong.
In yet another presidential power case, the court is deciding whether President Trump can impose significant tariffs on imports, despite the Constitution’s power to raise revenue for Congress.
And on Friday, Dec. 5, the court agreed to decide whether President Trump’s interpretation of the constitution means he can deny citizenship to some infants born in the United States.
President Trump says firing capability is ‘essential’
In Trump v. Slaughter, to be heard by the high court on December 8, the government will argue that the president’s ability to remove agency leaders is “essential” to the president’s constitutional responsibility to “see that the laws are faithfully executed.”
But in 1935, the Supreme Court stated that the Federal Trade Commission’s mission is “neither political nor administrative, but primarily quasi-judicial and quasi-legislative.”
“Like the Interstate Commerce Commission, its members are required to exercise the trained judgment of a body of experts ‘appointed by law and based on experience,'” Justice George Sutherland wrote for the court. “Such a body cannot in any proper sense be characterized as the arms or eyes of an executive.”
The Department of Justice argues that even if that was the correct interpretation of the 1935 FTC (which the Department of Justice disputes), that is not the case now.
“The modern-day FTC, like many independent agencies and its predecessor established in 1935, exercises enforcement powers, and indeed it exercises considerable authority,” Attorney General John Sauer said in a written filing.
He said the FTC can seek court orders and civil penalties against companies, create rules for companies to follow and investigate potential violations of the law.
“This court should overturn everything left behind by Humphrey’s executioners,” he wrote.
Could the President treat the FTC “like a little pet dog”?
Álvaro Bedoya, one of the two FTC commissioners fired by President Trump, said if the Supreme Court agrees with the president, he could treat the FTC and other agencies “like little pet dogs.”
In September, the FTC settled with Amazon over the agency’s allegations that the online retail giant tricked customers into signing up for Prime membership and made it difficult to cancel.
The FTC said the $2.5 billion settlement is historic. But Bedoya believes it wasn’t all that tough for the Amazon executives involved. He also said the FTC would not be taken seriously if the public saw such a deal months after Amazon donated $1 million to President Trump’s inauguration.
“This calls into question our ability to police all kinds of industries that are really fundamental to our lives,” he said of the president’s desire to fire government leaders at will.
But judges may not accept that argument.
When the court allowed President Trump to fire three Democratic members of the Consumer Product Safety Commission in July, Justice Elena Kagan, one of the court’s three liberal members, said her conservative colleagues had “almost overturned Humphey’s executioner.”
Justice Brett Kavanaugh, one of six conservative justices, said there was “at least a good chance” the court would overturn the decision.
