The Supreme Court has backed President Donald Trump’s power to fire the lone Democrat on the Federal Trade Commission without cause, agreeing at the same time to consider overturning a longstanding precedent that has protected independent agencies.
The high court’s three Democratic appointees dissented from the decision Monday to lift a lower court order that sided with the commissioner, Rebecca Slaughter, while litigation proceeds. The high court’s order said the justices will hear oral argument in the case during its December argument session.
“Our emergency docket should never be used, as it has been this year, to permit what our own precedent bars,” Justice Elena Kagan wrote for the three Democratic appointees, calling out how the Republican-appointed majority has helped Trump in this and other cases in his second term. “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,” she wrote.
Monday’s order follows Chief Justice John Roberts’ decision on Sept. 8 to temporarily halt Slaughter’s reinstatement while the full Supreme Court considered whether she should be reinstated while litigation over her firing continued. That word from the full court came Monday, as the majority sided with Trump ahead of the December hearing and, in doing so, signaled that it will side with him in its final decision. The court, whose next term starts in early October, typically issues the term’s decisions by early July, meaning a final decision in the Slaughter case should come by then next year.
In July, a federal judge ruled that Trump’s attempt to fire Slaughter was unlawful. A divided appellate panel refused to lift the judge’s order on Sept. 2, citing the 1935 Humphrey’s Executor precedent that endorsed for-cause removal protections. The Roberts Court has weakened that precedent, and the Trump administration has targeted it. The precedent arose in the context of the FTC specifically, raising the possibility that the justices could overturn it outright in Slaughter’s case.
The Supreme Court’s order Monday said the justices want the parties to brief and argue these two questions, specifically naming the 90-year-old precedent:
(1) Whether the statutory removal protections for members of the Federal Trade Commission violate the separation of powers and, if so, whether Humphrey’s Executor v. United States, 295 U. S. 602 (1935), should be overruled. (2) Whether a federal court may prevent a person’s removal from public office, either through relief at equity or at law.
Dissenting from the appellate panel’s Sept. 2 refusal to lift U.S. District Judge Loren AliKhan’s order, Trump appointee Neomi Rao acknowledged the Humphrey’s precedent but noted that the Supreme Court has been siding with Trump on his firing powers lately. In any event, the district judge was powerless to order Slaughter’s reinstatement, Rao wrote.
The administration cited Rao’s dissent in seeking to lift AliKhan’s order, casting the case as the latest in Trump’s second term to warrant relief from lower court overreach. “In this case, the lower courts have once again ordered the reinstatement of a high-level officer wielding substantial executive authority whom the President has determined should not exercise any executive power, let alone significant rulemaking and enforcement powers,” U.S. Solicitor General John Sauer wrote to the justices on Sept. 4. Sauer asked the justices to lift AliKhan’s order immediately. Opposing even a temporary pause in the judge’s order (which Roberts granted Sept. 8), Slaughter’s lawyers said the government wouldn’t be harmed by her continuing to serve while the administration’s application to the justices is pending. They sought to distinguish recent cases in which the court sided with the administration by noting that Slaughter “is the sole Democratic member on a Commission with a three-Republican majority,” so her presence on the FTC wouldn’t result in any meaningful action opposed by the majority. On Sept. 15, her lawyers further wrote that Congress hadn’t granted Trump the broad power he claims and that if he “is to be given new powers Congress has expressly and repeatedly refused to give him, that decision should come from the people’s elected representatives.” They further argued that “[a]t a minimum, any such far-reaching decision to reverse a considered congressional policy judgment should not be made on the emergency docket,” referring to the court’s rulings made without full briefing, hearing or explanation, which have frequently helped Trump in his second term. It’s the majority’s use of the docket in this way that Kagan and the Democratic appointees called out on Monday. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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