Supreme Court conservatives plan to support President Trump in FTC removal lawsuit

Conservative U.S. Supreme Court justices on Monday upheld the legality of President Donald Trump’s firing of the Federal Trade Commission commissioners, signaling they intend to endanger 90 years of legal precedent while extending the president’s powers in a historic manner.

The justices heard about 2 1/2 hours of arguments in the Justice Department’s appeal of a lower court ruling that found the Republican president overstepped his authority when he moved to fire Democratic FTC Commissioner Rebecca Slaughter in March, before the end of her term. The court, which has a 6-3 conservative majority, has supported Trump in a series of lawsuits since he returned to office in January.

The conservative justices seemed sympathetic to the administration’s argument that the lifetime tenure protections Congress gives to heads of independent agencies illegally usurp presidential power. The liberal justices said the administration’s position in the case significantly strengthened the president’s powers.

U.S. Attorney General D. John Sauer sided with the Trump administration, asking the court to overturn the 1935 Supreme Court precedent in Executive Humphrey v. United States, which limited presidential power by protecting the heads of independent agencies from removal. In recent decades, courts have narrowed the scope of this precedent but have not overturned it.

Conservative Chief Justice Roberts told Slaughter lawyer Amit Agarwal that the FTC had far less power at the time than it does now, suggesting that precedent is a relic of the past.

“The Humphrey executive is just a dry husk of what people once thought it was,” Roberts said of the ruling, which rejected Democratic President Franklin Roosevelt’s attempt to fire the FTC commissioner over policy differences despite the tenure protections afforded by Congress.

Roberts said the unanimous decision “addresses a government agency with little if any enforcement authority, which may be why it was able to garner such broad support in the court at the time.”

“Mr. Humphrey’s decision must be overturned,” Sauer told the justices, adding that the decision was an “indefensible outlier” to the court’s other precedents that “have not stood the test of time.”

Sauer said the precedent of Humphreys’ execution “continues to tempt Congress to install a headless Fourth Branch at the center of government, insulated from political accountability and democratic control.”

The U.S. Constitution provides for a separation of powers between the co-equal executive, legislative, and judicial branches of the federal government.

Liberal Justice Elena Kagan said the court should not ignore the “real-world realities” of the ruling.

“The result of what you want is for the president to have enormous unchecked and uncontrolled power to not only carry out traditional executions, but also to create laws through a legislative and adjudicative framework,” Kagan told Sauer.

“What you’re left with is a president… who has the power to control everything, including much of the legislation that happens in this country,” Kagan added.

Sauer countered that the effect would be that the president “under the Constitution must, and does, control the executive branch.”

Overturning or curtailing Humphrey’s powers would strengthen Trump’s authority at a time when he is already testing the limits of constitutional presidential power in a variety of areas, including immigration, customs, and domestic military deployment.

A federal judge and an appeals court earlier ruled against Trump. But in September, the Supreme Court allowed President Trump’s expulsion of Slaughter to go into effect, while agreeing to hear the Trump administration’s appeal.

Independent agencies are government agencies whose heads are given protected terms of office by Congress to protect these agencies from political interference by the president.

Liberal Justice Sonia Sotomayor said independent institutions have existed throughout American history and asked Sauer to explain why the court would have to make such fundamental changes to the structure of government.

“Neither the British monarch nor Congress nor a prime minister at the founding of the United States have ever had the unconditional power to remove people from office,” Sotomayor said, adding, “They are seeking to destroy the structure of government and strip Congress of its ability to uphold the idea that government is better structured by independent branches.”

A 1914 law passed by Congress allows the president to remove FTC commissioners only for reasons such as inefficiency, neglect of duty, or misconduct in office, not for policy differences. Similar protections apply to employees of more than 20 other independent agencies, including the National Labor Relations Board and the Merit Systems Protection Board.

Slaughter was one of two Democratic commissioners that President Trump moved in March to remove from the Consumer Protection and Antitrust Division before his term ends in 2029.

“We ask the court to follow all precedents and make good use of the collective wisdom and experience of all three branches of government,” Agarwal said. In contrast, Agarwal said the administration is “asking us to abandon one precedent after another.”

The conservative justices posed sharp questions to Mr. Agarwal’s argument that the president has absolute power to shoot at will only the heads of U.S. government agencies that exercise the president’s core powers, such as the military, law enforcement, and presidential authority over foreign affairs.

They also pressed Agarwal to explain whether there are limits to what Congress can do to transform the executive branch into multi-member commissions like the one Mr. Slaughter served on, and prevent the president from firing members at will.

Conservative Justice Brett Kavanaugh expressed concerns to Sauer about the threat to the independence of the Federal Reserve, the nation’s central bank.

Mr. Kavanaugh asked Mr. Sauer, “How do you distinguish between institutions such as the Federal Reserve and the Federal Trade Commission?”

In another presidential power case, the court is scheduled to hear arguments on January 21 in President Trump’s attempt to fire Federal Reserve Governor Lisa Cook, an unprecedented move that challenges central bank independence.

Liberal Justice Ketanji Brown Jackson expressed doubts that increasing the president’s removal powers would be good for democracy.

“You seem to think that democratic accountability requires the president to have control over everything, even though Congress has said that they want these particular agencies and officials to be independent of the president’s control in the interest of the people,” Jackson told Sauer.

Jackson emphasized that concentrating so much power under the president’s control would undermine the issues that Congress has determined should be handled by independent, bipartisan experts.

“So for a president to come in and fire all these scientists, doctors, economists, Ph.D.’s and replace them with loyalists and people who don’t know anything, it’s actually not in the best interest of the American people,” Jackson said.

Some of the justices asked how far a ruling in Mr. Slaughter’s case would go in favor of Mr. Trump, and whether it could jeopardize job protections for certain judicial bodies, such as the U.S. Tax Court or the Court of Federal Claims.

Justice Department lawyers representing Mr. Trump argued in favor of the “unitary executive” theory. This conservative legal theory holds that, despite legal protections for heads of independent agencies, the president has exclusive authority over the executive branch, including the power to remove and replace heads of independent agencies at will.

The Supreme Court is expected to issue a ruling by the end of June.