The Supreme Court heard arguments Monday in a key case that will determine the scope of the president’s authority over independent agencies. Close watchers of the case said the justices sounded inclined to broaden President Donald Trump’s power.
Trump fired Federal Trade Commissioners Rebecca Slaughter and Alvaro Bedoya in March. The two sued, starting a major legal battle of Trump’s second term that could transform the limits of presidential authority. Bedoya was dismissed from the lawsuit in July following his resignation from the agency.
The justices largely fell along partisan lines during oral arguments, with the prevailing question appearing to be where the court should draw the line for the president’s removal powers, rather than if they will expand those powers.
“It was not surprising,” Lauren McFerran, a former board member and chair of the National Labor Relations Board and fellow at The Century Foundation, said. “The majority justices seems to be leaning in the direction of overruling Humphrey’s Executor and ruling that the president can remove the head of the FTC without restriction. Where the rubber hits the road is how far the court is going to go.”
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Humphrey’s Executor v. United States, a unanimous 1935 Supreme Court ruling, found that Congress could limit the president’s removal powers when agency leaders perform “quasi-legislative” or “quasi-judicial” functions.
The Federal Trade Commission Act allows the president to remove commissioners due to “inefficiency, neglect of duty, or malfeasance in office.” Trump’s email terminating Slaughter did not cite these reasons, saying instead that her “continued service on the FTC is inconsistent with my administration’s priorities.”
The president appointed Slaughter, a Democrat who previously worked as chief counsel to Sen. Chuck Schumer, to the FTC in his first term.
“I want to make it crystal clear that overruling or narrowing Humphrey’s Executor would not threaten the existence of these agencies but only would alter how the heads of those agencies can be removed, correct?” conservative Justice Brett Kavanaugh asked Sauer.
“Correct,” Sauer said.
The court’s three liberal justices, however, raised concerns that it would do just that.
Liberal Justice Elena Kagan said she didn’t see a “stopping point” to the U.S. Solicitor General D. John Sauer’s argument that Congress should not be able to restrict the president’s removal powers, adding that the “real-world reality” of what the federal government was proposing must be taken into consideration.
“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 said.
Sauer returned to the government’s argument that agency leaders must be held accountable to the president.
“The real-world consequences here are human beings exercising enormous governmental authority with a great deal of control over individuals, business small and large,” Sauer later said. “Regardless of what happens, there is a power vacuum and somebody is going to come into that power vacuum.”
McFerran said that neglects the bipartisan design of the Federal Trade Commission and other multimember independent agencies, like the NLRB, which were created by Congress and are checked by the courts.
Former FTC official Douglas Farrar, who served under the Biden administration’s FTC Chair Lina Khan, warned that overturning Humphrey’s Executor could further empower President Trump’s expansion of the executive.
“If the Supreme Court overturns the precedent protecting independent agencies like the FTC then in the short term they are rubber stamping President Trump’s bribery based economic model. In the long term they will allow future presidents much wider latitude in structuring economic conditions,” Farrar said in a text to NOTUS.
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