Supreme Court: Trump Can Fire FTC Commissioner (for Now)

Score another win for the Trump administration. Today the Supreme Court issued an unsigned order saying the Trump administration could fire FTC Commissioner Rebecca Kelly Slaughter, at least until the court has a chance to hear arguments in the case later this year.

In an emergency order, a divided court announced that it would allow President Trump, for now, to fire Rebecca Kelly Slaughter, a F.T.C. commissioner, and that it would hear argument in the case in December, a signal that a majority of the court is ready to revisit a landmark precedent limiting presidential authority.

Mr. Trump had fired Ms. Slaughter and Alvaro Bedoya, two Democratic members of the F.T.C., in March. The federal agency, which enforces consumer protection and antitrust laws, typically has five commissioners — three from the president’s party and two from the opposing party.

After their firing, the two commissioners had said they planned to challenge their removal in court, relying on a 1935 landmark Supreme Court case, Humphrey’s Executor v. United States, that also involved the firing of an F.T.C. commissioner.

In its brief order Monday, the court said it would consider in December the broader question of whether to overturn the precedent that has prevented presidents from removing independent regulators without cause and solely over policy disagreements.

The court’s three liberals issued a brief dissent written by Justice Kagan:

The court’s majority, Kagan wrote, “may be raring” to invalidate for-cause removal requirements approved by Congress. But until it does, she wrote, a 1935 precedent on that issue should control.

“Our emergency docket should never be used, as it has been this year, to permit what our own precedent bars,” she wrote, echoing a point she made earlier in the year in a similar case. “Still more, it should not be used, as it also has been, to transfer government authority from Congress to the president, and thus to reshape the nation’s separation of powers.”

All of this does seem to be heading for an overturning of a 90-year-old case known as Humphrey’s Executor.

In 1935, the justices ruled that President Franklin D. Roosevelt could not fire a board member of the FTC, William Humphrey, simply because he opposed the president’s New Deal policies. Congress had stipulated members could only be fired for “inefficiency, neglect of duty, or malfeasance.” The case is known as Humphrey’s Executor.

The current Supreme Court has all but overturned that precedent in recent rulings. The justices allowed Trump to fire Democratic members of the Consumer Product Safety Commission in July and members of the National Labor Relations Board and Merit Systems Protection Board in May. Trump gave no reasons for the officials’ dismissals, despite statutes saying they could only be removed for cause.

“Because the Constitution vests the executive power in the President,” the majority wrote in the May decision, “he may remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions recognized by our precedents.”

What’s pretty clearly going to happen here is that the Court is going to hear arguments in December and then sometime next summer they will release a decision overturning the Humphrey’s Executor case. At that point, Trump will be able to fire anyone he wants to, with the likely exception of members of the FED.

In today’s ruling, the court’s liberals are basically saying that until that decision is issued next summer, the current law should control the outcome and that means Trump should not be able to fire these people.

In any case, it’s another win for the Trump administration which sets up an even bigger win to come.

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