Supreme Court poised to expand Trump’s power over independent agencies
The Supreme Court on Monday appeared poised to allow President Donald Trump to fire a leader of the Federal Trade Commission, a ruling that could limit or overturn a 90-year-old precedent that curbs executive power to dismiss the heads of agencies Congress set up to be independent.
A ruling in favor of Trump’s position has been widely expected by legal experts because the justices have been chipping away for years at the precedent, known as Humphrey’s Executor. Many of the Supreme Court’s conservative justices have expressed support for the idea known as unitary executive theory, which holds that the Constitution gives the president broad authority to fire officials which Congress cannot limit.
During roughly 2½ hours of arguments on Monday, Chief Justice John G. Roberts Jr. referred to Humphrey’s Executor as a “dried husk” and said the contemporary FTC bore little resemblance to the one that existed at the time of the high court’s 1935 ruling that insulated its commissioners from removal by the president without cause.
“It was addressing an agency that had little or no executive power,” Roberts said.
A decision to strike down Humphrey’s Executor and allow the president to fire Democrat Rebecca Slaughter could usher in one of the largest changes to the structure of the federal government in decades. It would hand Trump a major victory in his quest to exert tighter control over the federal bureaucracy and concentrate power in the White House.
The court’s three liberal justices expressed alarm at the idea of handing the president unfettered control over roughly two dozen agencies that regulate everything from product safety to elections to nuclear energy.
Justice Sonia Sotomayor told Solicitor General D. John Sauer “you are asking us to destroy the structure of government,” while Justice Elena Kagan added “you end up with massive, unchecked power in the hands of the president.”
“Independent agencies exist because Congress has deemed some issues should be handled by non-partisan experts,” Justice Ketanji Brown Jackson said. “Having a president come in and fire all the doctors and scientists and replace them with loyalists is not in the interest of the American people.”
Sauer told the justices that striking down Humphrey’s Executor would make federal agencies more accountable to voters who elect the president and fears that the structure of government would be undermined were overblown.
Conservative and liberal justices spent much of the arguments exploring the ramifications and limits of expanding the president’s power. A decision in the case is expected by June or July.
Trump fired Slaughter and Alvaro Bedoya, the only Democrats on the five-member FTC, in March, as part of an aggressive campaign to remove liberal leaders from independent agencies like the National Labor Relations Board (NLRB) and Consumer Product Safety Commission (CPSC) that were set up to be insulated from political interference. Trump has often derided bureaucrats as part of a “deep state,” an alleged secret network of nonelected officials working to shape the government and society, stymieing his agenda.
The law creating the FTC says presidents can only remove commissioners for “inefficiency, neglect of duty or malfeasance in office,” but Trump gave no reason for dismissing Slaughter and Bedoya. Slaughter sued, saying that violated the FTC statute.
A federal judge agreed in July, citing Humphrey’s Executor, which affirmed that Congress could set up independent, nonpartisan agencies whose leaders could only be fired for cause. The decision stemmed from President Franklin D. Roosevelt’s attempts to dismiss an FTC commissioner, William Humphrey, over political differences related to the New Deal and other issues.
An appeals court upheld the decision in Slaughter’s case, before the Trump administration appealed it to the Supreme Court. Chief Justice John G. Roberts Jr. paused Slaughter’s reinstatement in September so the high court could weigh the administration’s appeal.
Many in the Trump administration support the unitary executive theory. The idea behind the theory is that the president, as the only elected official in the executive branch, exercises all of its authority. Other officials are merely extensions of the president’s power, the theory holds, and they therefore can be removed at will.
Slaughter was unanimously approved by the Senate when Trump initially nominated her to the FTC in 2018 and again when President Joe Biden renominated her in 2023. The agency works on antitrust and consumer protection issues.
Slaughter’s attorneys argued the FTC’s removal protections were consistent with the separation of powers, pointing out Congress has been creating agencies with similar safeguards since 1790.
“Multimember agencies have been part of our story since 1790,”
But the justices have rejected similar arguments in recent years. In the most significant recent case, they ruled in 2020 that the law creating removal protections for the director of the powerful Consumer Financial Protection Bureau (CFPB) was unconstitutional because it violated the separation of powers.
The CFPB is legally different from the FTC because it is run by a single official, instead of a multimember board. Many other independent agencies like the Federal Communications Commission, CPSC and Securities and Exchange Commission share the FTC’s structure and could be affected by the ruling in Slaughter’s case.
In temporary rulings during the opening months of Trump’s second term, the justices have also allowed the president to fire members of the NLRB, Merit Systems Protection Board (MSPB) and the CPSC without cause, despite laws saying otherwise, while the legal challenges to the moves play out.
“Because the Constitution vests the executive power in the President,” the majority wrote in a decision blessing the NLRB and MSPB firings, “he may remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions recognized by our precedents.”
Those rulings have often drawn strong pushback from the court’s liberals.
Humphrey’s Executor is widely considered a significant landmark case because it led to the creation of the modern regulatory state. The idea behind independent agencies has been that their decision-making would be predicated on scientific evidence, technical knowledge and expertise rather than political considerations.
Consumer advocates worry the demise of Humphrey’s Executor could leave Americans less protected, since presidents could pressure agencies to craft regulation to appease big business, donors or political allies.
Erin Witte, director of consumer protection at the Consumer Federation of America, pointed to the CPSC.
“These are commissioners that deal with kids’ products, baby safe sleep things,” Witte said. “The last thing that we want is for industry to come in and insert their favorite folks at the commission.”
The FTC case is not the only test of Trump’s removal authority this term. In January, the justices will hear arguments over Trump’s attempt to fire Democrat Lisa Cook from the board of the Federal Reserve. The justices indicated during arguments Monday they could rule differently in that case because they they consider the central bank distinct from the FTC and other independent agencies.
The high court has allowed Cook to remain in her post as that case plays out.
“The Federal Reserve is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States,” the justices wrote in a May opinion.
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