Chief Justice John Roberts halted the reinstatement of the lone Democratic commissioner of the Federal Trade Commission, whom President Donald Trump sought to fire without cause. Roberts’ move Monday, known as an administrative stay, is technically temporary while the full Supreme Court considers whether to halt Rebecca Slaughter’s reinstatement pending further litigation on appeal.
While it isn’t the final word on the matter from the justices, it stands as Roberts’ latest boost to Trump’s power in his second term, which the high court has been strengthening over the past several months. Roberts was able to make the decision by himself because he fields emergency requests from Washington courts.
A federal judge ruled in July 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.
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, Rao wrote, the district judge was powerless to order Slaughter’s reinstatement.
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 Monday), 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. 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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