The Supreme Court’s conservative justices appear ready to overturn a 90-year-old precedent that said the president cannot fire a Federal Trade Commission member without cause. A ruling for Trump would give him more power over the FTC and potentially other independent agencies such as the Federal Communications Commission.
Former FTC Commissioner Rebecca Kelly Slaughter, a Democrat, sued Trump after he fired both Democrats from the commission in March. Slaughter’s case rests largely on the 1935 ruling in Humphrey’s Executor v. United States, in which the Supreme Court unanimously held that the president can only remove FTC commissioners for inefficiency, neglect of duty, or malfeasance in office.
Chief Justice John Roberts said during yesterday’s oral arguments that Humphrey’s Executor is a “dried husk” despite being the “primary authority” that Slaughter’s legal team is relying on. Roberts said the court’s 2020 ruling in Seila Law made it “pretty clear… that Humphrey’s Executor is just a dried husk of whatever people used to think it was because, in the opinion itself, it described the powers of the agency it was talking about, and they’re vanishingly insignificant, have nothing to do with what the FTC looks like today.”
In Seila Law, the Supreme Court ruled that the for-cause removal precedent from Humphrey’s Executor could not be extended to the Consumer Financial Protection Bureau (CFPB). The ruling said the CFPB “possesses significant administrative and enforcement authority, including the power to seek daunting monetary penalties against private parties in federal court—a quintessentially executive power not considered in Humphrey’s Executor.”
The Trump administration argues that Humphrey’s Executor shouldn’t apply to the current FTC because it exercises significant executive power. A federal appeals court disagreed and reinstated Slaughter, writing that the FTC’s powers have not changed since the 1935 ruling. But in September, the Supreme Court granted a stay that keeps Slaughter off the FTC at least until the court rules on the case’s merits.
Conservative justices skeptical of independent agencies
Humphrey’s Executor “was addressing an agency that had very little, if any, executive power, and that may be why they were able to attract such a broad support on the court at the time,” Roberts said.