Supreme Court will consider president's power to remove commissioners of independent agencies
The U.S. Supreme Court on Monday allowed President Donald Trump to fire a member of the Federal Trade Commission and agreed to consider whether statutory protections against removal violate the separation of powers.
The Supreme Court temporarily stayed a decision preventing the removal of FTC Commissioner Rebecca Slaughter and granted cert before judgment in the case, which reached the high court through its emergency docket.
The Supreme Court’s Sept. 22 order agreed to consider two questions.
The first is whether the restrictions on removal are unconstitutional and, if so, whether the high court should overrule Humphrey’s Executor v. United States. The 1935 Supreme Court case held that Congress can prevent a president from removing without cause members of the FTC, which is a multimember independent agency.
The second issue is whether a federal court can prevent a person’s removal from office.
Justice Elena Kagan dissented from the stay decision, joined by Justice Sonia Sotomayor and Justice Ketanji Brown Jackson.
Kagan said Supreme Court order allowing Slaughter’s removal “is just the latest in a series.” The Supreme Court previously issued emergency docket orders allowing removals without cause of members of the National Labor Relations Board, the Merit Systems Protection Board and the Consumer Product Safety Commission.
Kagan said the orders were at odds with statutory removal protections and Humphrey’s Executor.
“Under existing law, what Congress said goes—as this court unanimously decided nearly a century ago” in Humphrey’s Executor, Kagan said.
“Our emergency docket should never be used, as it has been this year, to permit what our own precedent bars. 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,” Kagan wrote.
The case is Trump v. Slaughter.
Publications covering the stay and cert grant include SCOTUSblog, Reuters and Bloomberg Law.
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