seems inclined to agree with the American president, Donald Trump, once again and give him a new power to the detriment of the Legislature: that of dismissing at will, something that would eliminate a precedent respected over the last 90 years.
The nine justices, a conservative supermajority—six are of that ideology compared to three progressive—heard this Monday the oral arguments in the case surrounding the dismissal of Rebecca Kelly Slaughter last March at the Federal Trade Commission, despite the fact that her term was to end in 2029.
Trump himself had appointed Slaughter to a Democratic seat on the FTC board of directors in 2018. After reaching the White House in 2021, President Joe Biden confirmed her for a second term.
But in March, Slaughter received a letter from the White House Personnel Office informing him of his termination, effective immediately. As the letter explained, his presence in the position was “inconsistent with the priorities of the Administration” of the new Republican president.
The FTC, an independent, nonpartisan agency, was founded in 1914 by order of the US Congress with the mission of preventing unfair competition in the US economy. By law, this five-seat commission cannot have more than three members from one party. And its members can only be fired for “incompetence, laziness or bad practices in office.”
Slaughter decided to go to court to appeal against his dismissal, arguing that his dismissal had not been based on any of the three assumptions and was therefore illegal. A lower court agreed with him and ordered his return to office. The US Government appealed that decision; in September, the Supreme Court that prohibited the expert from returning to the position until the highest judicial body had seen the case in detail and issued a decision. After having heard the arguments this Monday, the justices are expected to rule next June.
Independence from Government
The case would have an enormous impact on independent federal agencies, approximately two dozen agencies, as the Government’s lawyer, prosecutor John Sauer, estimated during the hearing. Its result could also affect another case that the Supreme Court has in hand and that may have historical consequences: the dismissal of the governor of the Federal Reserve Lisa Cook, whom Trump wanted to dismiss last August arguing that she had “causes”: an alleged mortgage fraud that the former academic denies. The independence of the Fed is fundamental for the good performance of the US economy, and the Supreme Court judges have indicated throughout this Monday’s hearing that they consider this institution a case apart from the rest of the independent federal agencies.
At the center of the debate in the case is the precedent set by the Supreme Court in 1935 in the case known as Humphrey’s Executioner v. United States. In that year, the highest court in the country established that the executive branch cannot remove the people at the head of independent federal agencies. Since then, other Supreme Court decisions have limited that sentence, but have not gone so far as to annul it. If Trump is right and determines that the president can fire Slaughter, that precedent would be pulverized.
“The Humphrey precedent must be annulled,” declared State Attorney John Sauer, who assured that, as it stands, that ruling has become outdated and represents an “indefensible exception” to an entire legislative body that points to the opposite theses: that the leaders of independent official organizations can be dismissed. If not, they argue, a power would be created apart from the three established in the Constitution, the executive, the legislative and the judicial. According to the argument of the Administration representative, the 1935 ruling “continues to tempt Congress to create, at the heart of our government, an amorphous fourth branch, isolated from democratic controls and political accountability.”
In their comments and questions, the six conservative justices tended to agree with him. The current Federal Trade Commission, noted the president of the Supreme Court, Justice John Roberts, has little to do with the one of 90 years ago, and is much more powerful.
The three progressive judges, for their part, argued that agreeing with Trump would mean increasing the powers of the Executive in a disproportionate manner. “The result of what (Sauer) proposes is that the president would have enormous power, without control, without restrictions, not only for his traditional executive powers, but also to create legislation… It would result in a presidency with control over everything, including much of the creation of laws that occurs in this country,” noted Justice Elena Kagan.
Judge Sonia Sotomayor, the first Latina on the highest US court, also expressed herself similarly. “Neither the king, nor Parliament, nor the British prime ministers at the time of the founding (of the United States) ever had unlimited ability to dismiss personnel,” he noted. “You are asking us to destroy the structure of government and take away Congress’s ability to protect its idea that a government is better structured if some agencies have independence.”
For his part, lawyer Amit Agarwal, defending Slaughter, argued that “multi-member commissions in which their members enjoy some type of protection against removal have been part of American history since 1790.”
After the 1935 ruling, Congress created a series of independent commissions and agencies whose members can only be removed if one of the supposed objectives is met, from the consumer protection agency to the equal employment opportunity commission. During Trump’s first term, the Supreme Court already authorized the dismissal of the director of another independent agency, the Consumer Financial Protection Bureau, arguing that this dismissal could be authorized because the affected entity was under the command of a single person. Roberts then indicated that Humphrey’s Executor ruling against the United States applied to independent federal institutions led by a multi-member body and having no “executive power.”
