The Supreme Court’s conservative majority appeared ready Monday to grant President Donald Trump more power to remove officials from the Federal Trade Commission and similar agencies, despite laws giving them firing protections. The 6-3 conservative-controlled court heard oral arguments Monday as the U.S. government seeks to overturn a lower court decision reinstating FTC Commissioner Rebecca Slaughter after Trump fired her in March. The court’s conservative wing repeatedly criticized a 90-year-old precedent known as Humphrey’s Executor, which limited the president’s ability to fire officials from the FTC and similar agencies without cause. At one point during the oral arguments, Chief Justice John G. Roberts Jr. called the precedent a “dried husk,” as the attorney for Slaughter and the court’s Democratic appointees warned about the risks of giving a president too much power. Roberts and other members of the court raised concerns that agency officials who can’t be fired by a president may be wielding unconstitutional power as they do executive branch functions. Roberts said the Supreme Court of 90 years ago “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.” Justice Brett M. Kavanaugh also said that it is difficult to imagine Congress ever restructuring an agency like the FTC to give the president more control. “Once the power is taken away from the president. It's very hard to get it back in the legislative process, kind of the flip side of what we were talking about in the tariffs case,” Kavanaugh said. “The real world of this is the independent agency shifts power from the presidency to the Congress.” Trump had fired Slaughter in March, along with fellow FTC Commissioner Alvaro Bedoya, among dozens of other administrative officials Trump has purged. Slaughter and Bedoya both challenged their firings but Bedoya dropped his case. Later, the U.S. Court of Appeals for the District of Columbia Circuit ruled in Slaughter’s favor and ordered she be reinstated. The Supreme Court put that ruling on hold, allowing Trump to keep Slaughter out of office while the case plays out. The justices will likely issue a decision in the case by the conclusion of the term at the end of June. Looming in the background during oral arguments was the legal firing protections for members of the Federal Reserve Board of Governors. The conservative majority has already hinted it may view those differently, and called it “uniquely structured, quasi-private entity” with history dating back to the founding of the country. Solicitor General D. John Sauer urged the justices to overturn Humphrey’s Executor, which “continues to tempt Congress to erect, at the heart of our government, a headless fourth branch insulated from political accountability and democratic control.” Sauer faced some questions from the court’s conservative majority about how the administration would distinguish the legal protections for members of the Federal Reserve or executive branch courts. Justice Amy Coney Barrett also hinted that the justices could leave questions about the outer bounds of a president’s firing authority for another case. Extended powers Justice Elena Kagan said the Trump administration’s argument would easily extend to allowing the president to remove officials from executive branch adjudicative bodies like the Federal Reserve, U.S. Tax Court or even everyday executive branch employees. “Once you’re down this road it is a little bit hard to see how you stop,” Kagan said. “It does not seem as though there’s a stopping point.” Kagan and the other Democratic appointees to the court repeatedly raised the concern that the court was stepping in on behalf of the president to change a “bargain” struck between a president and Congress about how to structure administrative agencies. Congress gave independent agencies powers to regulate American life that a president would not normally have, Kagan said. Letting presidents remove agency officials at will would give him “control over everything, including over much of the lawmaking that happens in this country," Kagan said. Amit Agarwal, arguing for Slaughter, pointed out that Congress has created agencies with unremovable board members since as early as the 1790s, and overturning Humphrey now would change a “foundational” aspect of American government. “If petitioners get their way, everything is on the chopping block. And we're not just talking about the FTC,” Agarwal said, pointing to the Federal Reserve. “There is no principled basis for carving those very important institutions out of their rule.” Justice Samuel A. Alito Jr. and other members of the court pushed Agarwal over whether Congress would have the power to substitute existing executive branch departments like the Department of Education with multi-member agencies. Monday’s case follows along with several cases in recent years expanding the president’s ability to fire executive branch officials despite statutory protections against their removal. That includes a decision allowing the president to remove the head of the Consumer Financial Protection Bureau and the Social Security Administration. Next month, the court is set to hear a separate case over Trump’s attempt to fire Federal Reserve Board governor Lisa Cook for cause. In that case, and the effort to remove Register of Copyrights Shira Perlmutter, the justices have allowed them to remain in their roles while the case plays out. The case is Donald J. Trump, President of the United States, et al. v. Rebecca Kelly Slaughter, et al.
