.png)
3 hours ago
4
The US supreme court on Monday appeared poised to back the Trump administration’s argument that the president should be able to fire independent board members that for almost a century have been protected from presidential interference.
The court heard arguments concerning the legality of Donald Trump’s firing of a Federal Trade Commission (FTC) member and appeared to be split down partisan lines in favor of a historic expansion of executive power, with the conservatives – including the sometimes swing vote of Justice Amy Coney Barrett – seeming to side with the administration.
The justice department has appealed a lower court’s decision that the Republican president exceeded his authority when he moved to dismiss Rebecca Slaughter, the Democratic FTC member, in March before her term was set to expire.
John Yoo, who served as a justice department lawyer under George W Bush, told Reuters the case presents “one of the most important questions over the last century on the workings of the federal government”. He added: “The future of the independence of the administrative state is at issue.”
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.
D John Sauer, the solicitor general, repeatedly argued that independent agencies like the FTC are a “headless fourth branch” with limited government oversight and that, in general, “independent agencies are not accountable to the people”. He argued that the key 90-year precedent, Humphrey’s Executor, “must be overruled”, describing the ruling as a “decaying husk with bold, and particularly dangerous pretensions”.
Regarding the 1935 precedent ruling, Chief Justice John Roberts said that historic precedent has “nothing to do with what the FTC looks like today”. That decision, he said, “was addressing an agency that had very little, if any executive power”.
The liberal justices, meanwhile, appeared sympathetic to Slaughter’s lawyer warning that “there are real-world risks that are palpable” in allowing a president the power to fire leaders of independent agencies. Doing so meant that “everything is on the chopping block”, Amit Agarwal said.
Sounding the alarm, liberal justice Sonia Sotomayor said that independent agencies have existed throughout US history. “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,” she said.
Justice Elena Kagan warned that the court should not ignore “the real-world realities” of what its decisions do. “The result of what you want is that the president is going to have massive, unchecked, uncontrolled power,” she told Sauer. “What you are left with is a president ... with control over everything.”
Justice Ketanji Brown Jackson also expressed doubt that more presidential firing power is better for democracy and emphasized that centering so much power under presidential control would undermine issues that Congress decided should be handled by nonpartisan experts in independent agencies.
“Having a president come in and fire all the scientists, and the doctors, and the economists and the PhDs, and replacing them with loyalists and people who don’t know anything is actually not in the best interest of the citizens of the United States,” she said.
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.
The conservative justice Brett Kavanaugh expressed concern to Sauer about threatening the independence of the Federal Reserve, the US 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 21 January in Trump’s attempt to remove Lisa Cook, the Federal Reserve governor, a move without precedent that challenges the central bank’s independence.
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.
Loren AliKhan, a Washington-based US district judge, in July blocked Trump’s firing of Slaughter, rejecting his administration’s argument that the tenure protections unlawfully encroached on presidential power. The US 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 supreme court is expected to rule by the end of June.
