Court seems likely to side with Trump on president’s power to fire FTC commissioner

Updated on Dec. 8 at 5:05 p.m.

The Supreme Court on Monday morning signaled that it was likely to strike down a federal law that restricts the president’s ability to fire members of the Federal Trade Commission. During two and a half hours of argument in the case of Trump v. Slaughter, a solid majority of the justices appeared to agree with the Trump administration that a law prohibiting the president from firing FTC commissioners except in cases of “inefficiency, neglect of duty, or malfeasance in office” violates the constitutional separation of powers between the three branches of government. And although several justices expressed skepticism about a 90-year-old case, Humphrey’s Executor v. United States, upholding that law, it was less clear that there was a majority ready to overrule it.

A decision in favor of the Trump administration would significantly increase the president’s power over not only the FTC but roughly two dozen other multi-member agencies that Congress intended to be independent. President Donald Trump has also fired members of the National Labor Relations Board, the Merit Systems Protection Board, and the Consumer Product Safety Commission. The Supreme Court has already allowed those firings to take effect in proceedings on its interim docket, but the court’s ruling in the case of FTC commissioner Rebecca Slaughter will provide a more definitive ruling on the legality of those firings.

The FTC has five commissioners, who are appointed by the president and confirmed by the Senate to serve seven-year terms. Under the laws governing the FTC, no more than three of the commissioners can come from a single political party, and, as noted above, commissioners can only be removed from office for “inefficiency, neglect of duty, or malfeasance in office.”

During his first term in office, Trump nominated Slaughter to fill one of the Democratic seats on the FTC. Then-President Joe Biden in 2023 tapped Slaughter to serve a second term, which was slated to end in 2029.

In March, Trump sent Slaughter an email firing her. He did not cite any reason for her removal other than that allowing her to remain on the FTC would be “inconsistent with [the] Administration’s priorities.”

Slaughter went to federal court in Washington, D.C., to challenge the legality of her firing. A federal judge ordered the Trump administration to reinstate her, and a divided panel of the U.S. Court of Appeals for the District of Columbia Circuit turned down the government’s bid to pause that ruling while it appealed.

Judges Patricia Millett and Nina Pillard relied on the Supreme Court’s 1935 ruling in Humphrey’s Executor v. United States, in which the justices upheld the FTC’s removal statute against a challenge by the Roosevelt administration. Only the Supreme Court, they wrote, could overturn that case.

The Trump administration came to the Supreme Court in September, asking the justices to put the lower court’s order on hold while it appeals. A few weeks later, the court granted that request, effectively giving Trump the green light to fire Slaughter, and agreed to hear arguments in the dispute.

Representing the Trump administration, U.S. Solicitor General D. John Sauer told the court on Monday that Humphrey’s Executor was an “indefensible outlier” and a “decaying husk” that must be overruled. The Supreme Court’s cases in recent years, he said, have “repudiated” its foundations.

By contrast, Amit Agarwal, representing Rebecca Slaughter, stated that the “president’s constitutional duty to execute the law does not give” the president “the power to violate that law with impunity.” If the Trump administration is correct that the removal statute at the center of the case violates the separation of powers, then “all three branches of government have been wrong from the start” of our country’s history, he contended.

Much of the argument focused on the possible broader effects of a ruling for either the Trump administration or Slaughter. The justices questioned whether a decision in Slaughter’s favor could give Congress sweeping power, including the authority to convert existing Cabinet departments into multi-member agencies that would be insulated from presidential control.

Agarwal agreed with Chief Justice John Roberts when Roberts asked whether Congress “could just take over” some Cabinet departments. He told Roberts that such a result is “probably within the realm of possibility,” although he emphasized that it would be “a pretty small universe” because so many Cabinet departments wield at least some executive power.

Justice Brett Kavanaugh, among others, was worried about such a scenario, telling Agarwal that it would allow Congress to create independent agencies without any requirement of partisan balance and with lengthy terms for the agency heads. This would give Congress the ability to create agencies to “thwart future presidents,” Kavanaugh remarked.

On the other side, some justices expressed concern that a ruling in favor of the Trump administration could affect not only other multi-member agencies like the MSPB and the NLRB but also other entities with similar removal statutes, such as the United States Tax Court and the United States Court of Claims. Agarwal told the justices that if Trump prevails, “everything [would be] on the chopping block.”

Justice Sonia Sotomayor echoed this sentiment, telling Sauer that he was “putting” those institutions “at risk.”

Justice Elena Kagan agreed, remarking to Sauer that if the justices were to adopt his theory, “it seems to include a great many things.”

Justice Samuel Alito was more sympathetic. He asked Sauer whether the court could issue a narrower ruling for the Trump administration that did not address the constitutionality of removal provisions for institutions such as the Tax Court.

Sauer responded that it could. The Supreme Court has discouraged, he emphasized, “general pronouncements” on issues that were not before the justices.

Kavanaugh suggested that the court could craft a decision that would not call into question the “for cause” removal law for governors of the Federal Reserve Bank – which, Sauer agreed, was “unique” and “distinct” – or the federal courts whose judges do not have life tenure. “Is that,” Kavanaugh asked Sauer, “a principled, sensible line we could draw?” Sauer responded that it was.

Kagan resisted such a solution. She stressed that a footnote carving out exceptions from a general rule “doesn’t do much good if the entire logic of the opinion drives you” to the conclusion that the general rule would also apply to the exceptions.

Justice Ketanji Brown Jackson posited that the court could “avoid these difficult line-drawing problems” by leaving the issue to Congress. The Constitution, she said, gives Congress the power to create independent, multi-member agencies – including the removal statutes for those agencies. And she pushed back against Sauer’s suggestion that striking down the removal statute would result in more political accountability. Why is Congress, she queried, “less democratically accountable” than the president?

Kagan portrayed Congress’ creation of independent agencies like the FTC as the result of a “bargain” over the last 100 years. Congress, she noted, gave the independent agencies substantial authority beyond executive power, and it bestowed that power precisely because the president does not control those agencies. But if part of that bargain is eliminated, she said, by giving the president control over those agencies, it would give the president “massive uncontrolled, unchecked power.”

Yet where Kagan saw a potential problem, Justice Neil Gorsuch saw an opportunity. Gorsuch has long sought to revive the “nondelegation doctrine” – the idea that Congress cannot delegate its lawmaking powers to other institutions. Gorsuch emphasized that the Supreme Court has allowed agencies to exercise a great deal of power – and, in particular, significant legislative power – “for a very long time.” Perhaps it is time, Gorsuch suggested, for the court to “do something about” that accumulation of power in independent agencies.

Kavanaugh echoed that suggestion. He indicated that “broad delegations to unaccountable independent agencies” pose serious questions about civil liberties and regulatory burdens.

Justice Amy Coney Barrett also questioned Kagan’s premise. She noted that Congress once had a legislative veto, which – until the Supreme Court held it unconstitutional – allowed it to overturn decisions by administrative agencies. Congress may have been willing at one time to give independent agencies like the FTC sweeping powers because it knew it could override the agency’s decisions. But now, she said, independent agencies aren’t accountable to either Congress or the president. Without that check on their powers, she posited, independent agencies have become “something that Congress didn’t intend.”

Although there seemed to be a clear majority that was ready to rule that Trump has the power to fire FTC commissioners, it was less certain whether the justices were ready to take the additional step of overruling Humphrey’s Executor.

The Democratic appointees came out strongly against overruling that 90-year-old precedent. Sotomayor, for example, pressed Sauer to provide an example of another case in which the court had overruled a case as old as Humphrey’s Executor and, in so doing, “fundamentally altered the structure of government.”

But Barrett told Sauer that “there’s been an eroding of Humphrey’s Executor” over the years, while Roberts suggested that the decision was merely a “dried husk.” And Gorsuch called the opinion “poorly reasoned” – one of the factors that the justices consider in determining whether to overrule a past precedent.

In what was likely a bad sign for Slaughter, the justices spent virtually no time on the second question presented in the case – whether, even if the FTC removal statute is constitutional, a federal judge can order the reinstatement of an official who was fired without case, or whether that official is only entitled to back pay. Kavanaugh expressed “real doubts” about the Trump administration’s theory that the official would only be entitled to back pay, telling Sauer that it would allow the government to circumvent the removal requirements. But, Kavanaugh observed, the court would not have to reach that question if it ruled for the Trump administration – which it seemed likely to do.

By contrast, several justices asked Sauer and Agarwal what should happen if the court concluded that the FTC removal provision was invalid. Sauer urged the court to simply take out the removal provision, telling them that it would be an appropriate remedy.

Kavanaugh appeared to agree, telling Sauer that if Humphrey’s Executor were overruled or narrowed, it would “alter” the removal statute but would not affect the “existence” of independent multi-member agencies like the FTC.

But Sotomayor suggested that, instead of severing the removal provision from federal law, the court should instead sever whatever “inappropriate” “power” the agency was exercising that prompted the court to hold that the removal provision was unconstitutional.

A decision in the case is expected by late June or early July.