Supreme Court Reviews Presidential Authority Over Independent Agencies
The Supreme Court is reviewing a case that may affect the operational independence of federal agencies, potentially altering a 90-year legal precedent concerning presidential removal powers and the separation of powers.
Rebecca Kelly Slaughter's Removal from the FTC
The case specifically addresses the removal of Rebecca Kelly Slaughter from her position on the Federal Trade Commission (FTC). Ms. Slaughter was initially appointed by President Trump in 2018 to a Democratic seat. President Biden later appointed her to a second term, scheduled to conclude in 2029. In March, Ms. Slaughter was notified by the White House Office of Presidential Personnel of her immediate removal, with the reason cited as her "continued service on the FTC is inconsistent with [the Trump] Administration's priorities."
Federal Trade Commission Structure and Removal Clause
The FTC was established by Congress in 1914 as a bipartisan, independent agency. Its mandate includes protecting the American economy from unfair competition practices. The commission consists of five members, with a statutory limit of three members from the same political party. Commissioners can only be removed for "inefficiency, neglect of duty or malfeasance in office" by law.
Legal Proceedings and Supreme Court Involvement
Ms. Slaughter initiated a lawsuit, stating no such reason for her removal was provided. A lower court ruled that her removal was unlawful and ordered her reinstatement. The Trump administration appealed this decision. In September, the Supreme Court issued an emergency order that removed her from her position, pending a hearing on the merits of the case. The justices' vote was 6-3 to temporarily uphold her removal.
Precedent: Humphrey's Executor
In 1933, President Franklin D. Roosevelt also sought to remove an FTC commissioner due to ideological differences. The resulting 1935 Supreme Court case, Humphrey's Executor, established that while presidents have broad power to remove purely executive officers, this authority does not extend to officials of agencies like the FTC. The court determined such agencies perform "quasi-judicial and quasi-legislative" duties, not exclusively executive or political ones. This decision led to the creation of numerous other multimember independent agencies where members can only be removed "for cause." Since January, the Trump administration has also removed Democratic members from other such agencies, including the Equal Employment Opportunity Commission, the Merit Systems Protection Board, and the Consumer Product Safety Commission.
Arguments Against Humphrey's Executor
The Trump administration argues that the Humphrey's Executor decision was based on a flawed understanding of the FTC's functions in 1935. The administration asserts that the FTC exercised executive power at that time, and these powers have since expanded.
Recent Rulings on Presidential Removal Powers
During President Trump's first term, the Supreme Court made a distinction regarding Humphrey's Executor by permitting the firing of the Consumer Financial Protection Bureau (CFPB) head. The court ruled this permissible because the CFPB is led by a single director, unlike a multimember board. Chief Justice John Roberts stated that Humphrey's Executor applies to multimember agencies "that do not wield substantial executive power." More recently, the D.C. Circuit Court of Appeals issued a 2-1 decision consistent with this guidance, deeming the Trump administration's firings of Merit Systems Protection Board member Cathy Harris and National Labor Relations Board member Gwynne Wilcox lawful, citing the "significant executive powers" of those agencies.
Conflicting Perspectives on Agency Independence
Ms. Slaughter maintains that preserving the independence of bipartisan multimember agencies is crucial, asserting that "independence allows the decision-making that is done by these boards and commissions to be on the merits, about the facts, and about protecting the interests of the American people." Conversely, James M. Burnham, an attorney who has served in Trump administrations, stated his view that "there is no such thing as an independent agency," arguing that "everything has to be in one of the three branches of government" and that "the removal protections have been unconstitutional from the beginning."
Further Deliberation Scheduled
The Supreme Court is scheduled to further address issues related to Humphrey's Executor on January 21, when it reviews another case concerning the attempted firing of Federal Reserve Governor Lisa Cook by the Trump administration.