By John Kruzel
WASHINGTON, Dec 5 (Reuters) – The U.S. Supreme Court next week weighs the legality of Donald Trump’s firing of a Federal Trade Commission member in a major test of presidential power over agencies set up by Congress to be insulated from White House control in a case that could imperil a 90-year-old legal precedent.
The court hears arguments on Monday in the Justice Department’s appeal of a lower court’s decision that Trump exceeded his authority when he moved to dismiss Democratic FTC member Rebecca Slaughter in March before her term was set to expire.
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.
Such an outcome would be welcomed by proponents of a conservative legal doctrine called the “unitary executive” theory who see the president as possessing sole authority over the executive branch including the power to fire heads of independent agencies at will and pick their replacements.
Critics of this doctrine note that Congress enacted tenure-protected terms for independent agency heads to keep these offices free from political interference. Making such officials removable at the president’s whim, they say, would threaten the regulatory stability relied upon by businesses, consumers and the American public.
‘THE ADMINISTRATIVE STATE’
John Yoo, who served as a Justice Department lawyer under Republican former President George W. Bush, said the Slaughter case presents “one of the most important questions over the last century on the workings of the federal government.”
“The future of the independence of the administrative state is at issue,” said Yoo, referring to the collection of federal agencies that regulate key aspects of American life and business, from finance to air traffic safety to labor relations.
Among unitary executive proponents like Yoo, now a professor at the University of California, Berkeley School of Law, a president’s authority to fire executive branch officials “is centrally important because removal is the only tool by which a president can formally require subordinates to follow his commands.”
Advocates of the unitary executive have long called for the Supreme Court to overrule 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 Slaughter case involves a Republican president firing a member of the same agency, also over policy differences.
In the 1935 decision, the court said restricting a president’s removal of commissioners was lawful because the FTC performed tasks more closely resembling legislative and judicial functions rather than those belonging squarely to the executive branch, headed by the president.
The Constitution set up a separation of powers among the U.S. government’s coequal executive, legislative and judicial branches.
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.
THE ROLE OF CONGRESS
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.
University of Illinois Chicago law professor Steve Schwinn said an unfettered view of presidential firing authority fails to fully account for the key role Congress plays in shaping government agencies.
“A president might argue that (broad removal authority) makes agencies more responsive to the president’s policy preferences, and that this makes sense, given that the president sits atop the executive branch,” Schwinn said.
“The problem with this thinking is that Congress also has a clear textual role in creating, vesting with authority, funding, and even structuring agencies,” Schwinn added, referring to the Constitution. “This is part of our separation-of-powers, checks-and-balances system.”
CHIPPING AWAY AT HUMPHREY’S EXECUTOR
The case tests whether the court’s conservatives are willing to overturn yet another precedent, as they have in major rulings in recent years rolling back abortion rights, rejecting race-conscious college admissions policies and ending the doctrine of deferring to U.S. agencies in interpreting laws they administer.
The Supreme Court in recent decades narrowed the reach of Humphrey’s Executor but stopped short of overturning it. In a 2020 ruling that upheld Humphrey’s, it said Article II of the Constitution gives the president the general power to remove heads of agencies at will, but that the Humphrey’s Executor decision had carved out an exception that allowed for-cause removal protections for certain multi-member, expert agencies.
If the court broadly invalidates tenure protections for agency heads, it would be “a dramatic change in the law and in practice,” said Erwin Chemerinsky, dean of the University of California, Berkeley Law School, adding that it would allow a president “to fire all commissioners of all agencies and replace them all.”
“There will be far less stability in the law,” Chemerinsky said. “Agencies will be perceived as, and will be, part of carrying out a president’s agenda.”
TRUMP’S FTC FIRINGS
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. The firings drew criticism from Democratic senators and antimonopoly groups concerned that the move was designed to eliminate opposition within the agency to big corporations.
Washington-based U.S. 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 U.S. 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.
The lower courts ruled that the statutory protections shielding FTC members from being removed without cause comply with the Constitution in light of the Humphrey’s Executor precedent.
The Trump administration has argued that the modern FTC “indisputably wields executive power,” thus bolstering the case that its members can be fired at will by the president.
Lawyers for Slaughter acknowledged that the FTC’s powers have grown since the Humphrey’s Executor decision. But citing Supreme Court precedent they argued that the constitutionality of removal restrictions does not hinge on the breadth of an agency’s regulatory and enforcement authority.
In May, the Supreme Court allowed Trump’s dismissals of officials at the National Labor Relations Board and Merit Systems Protection Board – despite congressionally mandated job protections for those posts – while legal challenges proceeded.
The court in that ruling said the Constitution gives the president wide latitude to fire government officials who wield executive power on his behalf, and that the administration “is likely to show that both the NLRB and MSPB exercise considerable executive power.”
Citing that rationale in July, the court also allowed Trump to remove three Democratic members of the U.S. government’s top consumer product safety watchdog while a legal challenge to their removal proceeds.
In January, the justices will hear arguments over Trump’s attempt to remove Federal Reserve Governor Lisa Cook, a move without precedent that challenges the central bank’s independence. Unlike with Slaughter, the court left Cook in her position for the time being.
(Reporting by John Kruzel)
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