The Supreme Court said Monday it will consider expanding President Donald Trump's power to shape independent agencies by overturning a nearly century-old decision limiting when presidents can fire board members.
In a 6-3 decision, the high court also allowed the Republican president to carry out the firing of Rebecca Slaughter, a Democratic member of the Federal Trade Commission, while the case plays out.
It's the latest high-profile firing the court has allowed in recent months, signaling the conservative majority is poised to overturn or narrow a 1935 Supreme Court decision that found commissioners can only be removed for misconduct or neglect of duty.
Justice Elena Kagan, joined by Sonia Sotomayor and Ketanji Brown Jackson, dissented from the decision allowing Slaughter’s firing. It comes after similar decisions affecting three other independent agencies.
“Congress, as everyone agrees, prohibited each of those presidential removals,” Kagan wrote. “Yet the majority, stay order by stay order, has handed full control of all those agencies to the President.”
The majority did not detail their reasoning on allowing Slaughter's firing, as is typical on the court's emergency docket. The court has previously indicated that because those agencies exercise executive power, the president likely has the power to remove board members at will, with some exceptions.
The justices are expected to hear arguments in December over whether to overturn a 90-year-old ruling known as Humphrey’s Executor.
In that case, the court sided with another FTC commissioner who was fired by Franklin D. Roosevelt as the president worked to implement the New Deal. The justices unanimously found commissioners can be removed only for misconduct or neglect of duty.
That 1935 decision ushered in an era of powerful independent federal agencies charged with regulating labor relations, employment discrimination and public airwaves. But it has long rankled conservative legal theorists who argue such agencies should answer to the president.
The Justice Department argues Trump can fire board members for any reason as he works to carry out his agenda. “The President and the government suffer irreparable harm when courts transfer even some of that executive power to officers beyond the President’s control,” Solicitor General D. John Sauer wrote. Courts have no power to order reinstatement, only back pay, Sauer argued.
But Slaughter’s attorneys say that regulatory decisions will be based more on politics than on board members’ expertise if the president can fire congressionally confirmed board members at will. “If the President 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 argued.
The court will hear arguments unusually early in the process, before the case has fully worked its way through lower courts.
The court rejected a push from two other board members of independent agencies who had asked the justices to also hear their cases if they took up the Slaughter case: Gwynne Wilcox, of the National Labor Relations Board, and Cathy Harris, of the Merit Systems Protection Board. Those cases will continue to work their way through the lower courts.
The FTC is a regulator enforcing consumer protection measures and antitrust legislation. The NLRB investigates unfair labor practices and oversees union elections, while the MSPB reviews disputes from federal workers.
The court has already allowed the president to fire all three board members for now. The court has suggested, however, that Federal Reserve might be different, a prospect expected to be tested by the case of fired Fed Governor Lisa Cook.
