Slaughter v. Trump

Conservative justices seem ready to back Trump control of independent agencies.

The Supreme Court. Credit: Getty Images | Douglas Rissing

The Supreme Court’s conservative justices appear ready to overturn a 90-year-old precedent that said the president cannot fire a Federal Trade Commission member without cause. A ruling for Trump would give him more power over the FTC and potentially other independent agencies such as the Federal Communications Commission.

Former FTC Commissioner Rebecca Kelly Slaughter, a Democrat, sued Trump after he fired both Democrats from the commission in March. Slaughter’s case rests largely on the 1935 ruling in Humphrey’s Executor v. United States, in which the Supreme Court unanimously held that the president can only remove FTC commissioners for inefficiency, neglect of duty, or malfeasance in office.

Chief Justice John Roberts said during yesterday’s oral arguments that Humphrey’s Executor is a “dried husk” despite being the “primary authority” that Slaughter’s legal team is relying on. Roberts said the court’s 2020 ruling in Seila Law made it “pretty clear… that Humphrey’s Executor is just a dried husk of whatever people used to think it was because, in the opinion itself, it described the powers of the agency it was talking about, and they’re vanishingly insignificant, have nothing to do with what the FTC looks like today.”

In Seila Law, the Supreme Court ruled that the for-cause removal precedent from Humphrey’s Executor could not be extended to the Consumer Financial Protection Bureau (CFPB). The ruling said the CFPB “possesses significant administrative and enforcement authority, including the power to seek daunting monetary penalties against private parties in federal court—a quintessentially executive power not considered in Humphrey’s Executor.”

The Trump administration argues that Humphrey’s Executor shouldn’t apply to the current FTC because it exercises significant executive power. A federal appeals court disagreed and reinstated Slaughter, writing that the FTC’s powers have not changed since the 1935 ruling. But in September, the Supreme Court granted a stay that keeps Slaughter off the FTC at least until the court rules on the case’s merits.

Conservative justices skeptical of independent agencies

Humphrey’s Executor “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.

Justice Samuel Alito suggested that a ruling for Slaughter could open the way for Congress to convert various executive branch agencies into “multi-member commissions with members protected from plenary presidential removal authority.”

“I could go down the list… How about Veterans Affairs? How about Interior? Labor? EPA? Commerce? Education? What am I missing?” Alito said.

“Agriculture,” Justice Neil Gorsuch responded. The official transcript notes that Gorsuch’s response was met with laughter.

Justice Brett Kavanaugh expressed skepticism about the power of independent agencies, saying, “I think broad delegations to unaccountable independent agencies raise enormous constitutional and real-world problems for individual liberty.” He said the court’s approach with “the major questions doctrine over the last several years” has been to “make sure that we are not just being casual about assuming that Congress has delegated major questions of political or economic significance to independent agencies, or to any agencies for that matter.”

Kagan: President would have “uncontrolled, unchecked power”

Unlike the unanimous Humphrey’s Executor, the Slaughter case appears headed for a split ruling between the court’s conservative and liberal justices. Justice Ketanji Brown Jackson said there are “dangers and real-world consequences” of the Trump administration’s position.

“My understanding was that independent agencies exist because Congress has decided that some issues, some matters, some areas should be handled in this way by nonpartisan experts, that Congress is saying that expertise matters with respect to aspects of the economy and transportation and the various independent agencies that we have,” Jackson said. “So having a president come in and fire all the scientists and the doctors and the economists and the Ph.D.s 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. This is what I think Congress’s policy decision is when it says that these certain agencies we’re not going to make directly accountable to the president.”

Justice Elena Kagan said there has historically been a “bargain” in which “Congress has given these agencies a lot of work to do that is not traditionally executive work… and they’ve given all of that power to these agencies largely with it in mind that the agencies are not under the control of a single person, of the president, but that, indeed, Congress has a great deal of influence over them too. And if you take away a half of this bargain, you end up with just massive, uncontrolled, unchecked power in the hands of the president.”

Gorsuch argued that the bargain has given too much power to agencies. “The one thing our framers knew is that every political actor seeks to enhance its own power. We all know that to be true from our own experiences,” Gorsuch said. “And this court, as part of this bargain, has allowed these agencies to exercise both executive and legislative [power].”

Sotomayor: “You’re asking us to destroy the structure of government”

Justice Sonia Sotomayor said that “independent agencies have been around since the founding… this is not a modern contrivance.” She told US Solicitor General John Sauer, who argued the case for the Trump administration, that “neither the king nor parliament nor prime ministers, England at the time of the founding, ever had an unqualified removal power… 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.”

US law lists 19 federal agencies that are classified as “independent regulatory agencies.” The agencies’ authorities vary based on their specific powers granted by Congress, but they typically have multimember structures and are insulated from direct presidential control.

In February, Trump issued an executive order declaring that historically independent agencies such as the FTC and FCC could no longer operate independently from the White House. While Trump hasn’t fired the FCC’s only Democrat, Anna Gomez, both the FTC and FCC are led by Republican chairs who haven’t objected to Trump’s growing control over historically independent agencies.

US Senator Amy Klobuchar (D-Minn.) said yesterday that “Congress has long used its power to establish independent agencies to protect consumers, workers, investors, and others without undue political pressure. Commissioner Slaughter’s unlawful firing goes against nearly a century of precedent that ensures these agencies remain independent and work for Americans, not the president’s friends and donors. It is deeply troubling that conservative justices appear ready to give the president even more unchecked power.”

Jon is a Senior IT Reporter for Ars Technica. He covers the telecom industry, Federal Communications Commission rulemakings, broadband consumer affairs, court cases, and government regulation of the tech industry.