WASHINGTON, Dec 8 (Reuters) – The U.S. Supreme Court heard arguments on Monday concerning the legality of Donald Trump’s firing of a Federal Trade Commission member in a major test of presidential power, with a Justice Department lawyer asking the justices to overrule a 90-year-old legal precedent.
The Justice Department has appealed a lower court’s decision that the Republican president exceeded his authority when he moved to dismiss Democratic FTC member Rebecca Slaughter in March before her term was set to expire.
The arguments were ongoing.
The case gives the court, which has a 6-3 conservative majority, an opportunity to overturn a New Deal-era Supreme Court precedent in a case called Humphrey’s Executor v. United States that has shielded the heads of independent agencies from removal since 1935.
‘INDEFENSIBLE OUTLIER’
“Humphrey’s must be overruled,” U.S. Solicitor General D. John Sauer, arguing for the Trump administration, told the justices at the outset of the arguments.
Humphrey’s Executor stands as an “indefensible outlier” to the court’s other precedents that has “not withstood the test of time,” Sauer said.
Sauer said the existence of the Humphrey’s Executor precedent “continues to tempt Congress to erect, at the heart of our government, a headless fourth branch insulated from political accountability and democratic control.”
The Constitution set up a separation of powers among the U.S. government’s coequal executive, legislative and judicial branches.
“You’re asking us to overturn a case that has been around for nearly 100 years,” liberal Justice Sonia Sotomayor told Sauer.
Independent agencies are government entities whose heads have been given tenure-protected terms by Congress to keep these offices free from political interference by presidents.
Sotomayor said independent agencies have existed throughout U.S. history, and challenged Sauer to explain why the court should make such a drastic change to the structure of government.
“Neither the king, nor parliament nor prime ministers in England at the time of the founding (of the United States) ever had a unqualified removal power,” Sotomayor said, adding, “You’re asking us to destroy the structure of government and to take away from Congress its ability to protect its idea that a government is better structured with some agencies that are independent.”
A 1914 law passed by Congress permits a president to remove FTC commissioners only for cause – such as inefficiency, neglect of duty or malfeasance in office – but not for policy differences. Similar protections cover officials at more than two dozen other independent agencies, including the National Labor Relations Board and Merit Systems Protection Board.
Conservative Justice Brett Kavanaugh expressed concern to Sauer about threatening the independence of the Federal Reserve, the U.S. central bank.
Kavanaugh asked Sauer: “How would you distinguish the Federal Reserve from agencies such as the Federal Trade Commission?”
In another case involving presidential powers, the court will hear arguments on January 21 in Trump’s attempt to remove Federal Reserve Governor Lisa Cook, a move without precedent that challenges the central bank’s independence.
UNITARY EXECUTIVE THEORY
Justice Department lawyers representing Trump have advanced arguments embracing the “unitary executive” theory. This conservative legal doctrine sees the president as possessing sole authority over the executive branch, including the power to fire and replace heads of independent agencies at will, despite legal protections for these positions.
Slaughter was one of two Democratic commissioners who Trump moved to fire in March from the consumer protection and antitrust agency before her term expires in 2029. The firings drew criticism from Democratic senators and antimonopoly groups concerned that the move was designed to eliminate opposition within the agency to big corporations.
Washington-based U.S. District Judge Loren AliKhan in July blocked Trump’s firing of Slaughter, rejecting his administration’s argument that the tenure protections unlawfully encroached on presidential power. The U.S. Court of Appeals for the District of Columbia Circuit in September in a 2-1 decision kept AliKhan’s ruling in place.
But the Supreme Court later in September allowed Trump’s ouster of Slaughter to go into effect – an action that drew dissents from its three liberal justices – while agreeing to hear arguments in the case.
The lower courts ruled that the statutory protections shielding FTC members from being removed without cause comply with the Constitution in light of the Humphrey’s Executor precedent.
OVERTURNING PRECEDENT
The case tests whether the court’s conservatives are willing to rein in or overturn the Humphrey’s Executor decision, which rebuffed Democratic President Franklin Roosevelt’s attempt to fire a Federal Trade Commission member over policy differences despite tenure protections given by Congress.
In the 1935 decision, the court said restricting a president’s removal of commissioners was lawful because the FTC performed tasks more closely resembling legislative and judicial functions rather than those belonging squarely to the executive branch, headed by the president.
The Supreme Court in recent decades narrowed the reach of Humphrey’s Executor but stopped short of overturning it. In a 2020 ruling, it said Article II of the Constitution gives the president the general power to remove heads of agencies at will but that the 1935 precedent had carved out an exception that allowed for-cause removal protections for certain multi-member, expert agencies.
Slaughter’s case also gives the justices an opportunity to address whether lower courts are permitted to block the removal of executive officials even if such firings are found to have been illegal.
The Supreme Court is expected to rule by the end of June.
(Reporting by John Kruzel; Editing by Will Dunham)
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