FILE PHOTO: Rebecca Kelly Slaughter
The Supreme Court hears Monday arguments in a case that could end the independence of independent agencies, overturn a 90-year-old precedent, and reshape the balance of power between Congress and the president.
At issue is whether President Trump can fire Rebecca Kelly Slaughter, whom Trump appointed in 2018, during his first term, to fill a Democratic seat on the Federal Trade Commission. President Biden appointed Slaughter to a second term, which was supposed to end in 2029.
Instead, in March, Slaughter received an email from the White House Office of Presidential Personnel informing her that she was being removed from office, effective immediately. She was told her “continued service on the FTC is inconsistent with [the Trump] Administration’s priorities.”
Congress created the FTC in 1914 as a bipartisan, independent agency tasked with protecting the American economy from unfair methods of competition. By law, the five-member commission can have no more than three members of the same political party, and commissioners can only be fired for “inefficiency, neglect of duty or malfeasance in office.”
Slaughter had been given no such reason for her removal, and so she sued. A lower court declared that Slaughter had been unlawfully removed from the FTC and ordered her back to work. The Trump administration appealed that ruling, and in September, the Supreme Court issued an emergency orderremoving her from her seat until the merits of her case could be heard. Justices voted 6 to 3 along ideological lines to allow her firing to stand — for now.
Reconsidering a 90-year-old precedent
Proving that history does repeat itself, in 1933, President Franklin D. Roosevelt attempted to fire an FTC commissioner over ideological disagreements. In that case, called Humphrey’s Executor, the court unanimously held that while the president has the power to remove purely executive officers for any reason, that unlimited power does not extend to agencies like the FTC, whose duties “are neither political nor executive, but predominantly quasi-judicial and quasi-legislative.
Following that 1935 decision, Congress went on to create many more multimember, independent agencies whose members likewise can only be removed for cause. Since January, Trump has also removed Democratic members from some of those agencies, including the Equal Employment Opportunity Commission, the Merit Systems Protection Board and the Consumer Product Safety Commission.
NPR