US supreme court appears set to back Trump on FTC firing in major expansion of power | US supreme court
The US supreme court on Monday appeared poised to back the Trump administration’s argument that the president should be able to remove independent board members who have been protected from presidential interference for nearly a century.
The court heard arguments over the legality of Donald Trump’s firing of a Federal Trade Commission (FTC) member and appeared to be divided along partisan lines in favor of a historic expansion of executive power; Conservatives — including the sometimes volatile votes of Judge Amy Coney Barrett — appeared to favor the administration.
The justice department appealed a lower court’s ruling that the Republican president exceeded his authority when he moved to remove Democratic FTC member Rebecca Slaughter before her term expired in March.
John Yoo, who served as a justice department lawyer under George W. Bush, told Reuters that the case presented “one of the most important questions about the functioning of the federal government in the last century.” He added: “The future of the independence of the administrative state is at stake.”
The case gives the court, which has a 6-3 conservative majority, an opportunity to overturn New Deal-era supreme court precedent in Humphrey’s Executor v. United States, which has protected presidents of independent organizations from removal since 1935.
Attorney General D John Sauer has repeatedly argued that independent agencies such as the FTC are a “headless fourth branch” with limited government oversight and that, in general, “independent agencies are not accountable to the public.” He argued that the landmark 90-year-old precedent Humphrey’s Executor “should be rejected” and described the decision as “a rotting shell with bold and particularly dangerous claims”.
Regarding the precedent decision in 1935, Chief Justice John Roberts said the historical precedent “has no bearing on what the FTC looks like today.” This decision, he said, “is aimed at an institution that has little, if any, executive authority.”
Liberal justices, meanwhile, were sympathetic to Slaughter’s lawyer’s warning that “there are tangible real-world risks” in giving a president the power to remove leaders of independent institutions. Amit Agarwal said this means “everything is about to fall apart.”
Liberal Justice Sonia Sotomayor, who sounded the alarm, said independent institutions have existed throughout U.S. history. “You’re asking us to destroy the structure of government and take away the ability of Congress to maintain the idea that government is better structured with some independent institutions,” he said.
Justice Elena Kagan warned that the court’s decisions should not ignore “real world realities.” “The outcome of what you want is for the president to have tremendous, unchecked, unchecked power,” he told Sauer. “What you’re left with is a president who controls everything.”
Justice Ketanji Brown Jackson also expressed skepticism that more presidential power to fire is better for democracy, emphasizing that concentrating so much power under the president’s control would undermine issues that Congress has determined should be addressed by nonpartisan experts in independent agencies.
“It’s not actually in the interest of the citizens of the United States for a president to come in and fire all the scientists, doctors, economists, and PhDs and replace them with loyal, know-nothing people,” he said.
A 1914 law passed by Congress allows the president to remove FTC commissioners solely for reasons such as inefficiency, dereliction of duty or malfeasance, but he lacks that authority due to policy differences. Similar protections cover officials at more than two dozen independent agencies, including the National Labor Relations Board and the Merit Systems Protection Board.
Conservative judge Brett Kavanaugh expressed concerns to Sauer about the threat to the independence of the U.S. central bank, the Federal Reserve.
Kavanaugh asked Sauer: “How do you separate the Federal Reserve from agencies like the Federal Trade Commission?”
In another case involving presidential powers, the court will hear arguments on Jan. 21 over Trump’s attempt to oust Federal Reserve governor Lisa Cook in an unprecedented move that challenges the independence of the central bank.
Justice Department lawyers representing Trump have further arguments that embrace the “unitary executive” theory. This conservative legal doctrine views the president as having sole authority over the executive branch, including the power to remove and replace the heads of independent agencies at will, despite legal protections for those positions.
Slaughter was one of two Democratic commissioners Trump fired from the Consumer Protection and Antitrust Agency in March before his term ends in 2029. The layoffs have drawn criticism from Democratic senators and anti-monopoly groups who worry the move is designed to quash internal opposition to big business.
Washington-based U.S. district judge Loren AliKhan blocked Trump from firing Slaughter in July, rejecting his administration’s argument that tenure protections unlawfully encroached on presidential power. The US appeals court for the District of Columbia kept AliKhan’s decision in effect with a 2-1 decision in September.
But in late September, the high court allowed Trump to fire Slaughter; This was an action that drew dissent from three liberal justices who also agreed to hear arguments in the case.
The high court is expected to rule by the end of June.
