On Monday, the Supreme Court will hear pivotal arguments in a case that threatens to undermine the independence of independent agencies, potentially overturning a 90-year-old precedent and altering the balance of power between Congress and the President. Central to this case is whether President Trump can dismiss Rebecca Kelly Slaughter from her position on the Federal Trade Commission (FTC), a role she initially filled in 2018 during Trump's first term to represent a Democratic seat. Although President Biden later appointed Slaughter for a second term, which was expected to last until 2029, she received unexpected news in March: an email from the White House Office of Presidential Personnel stating her immediate removal from office. The email cited that her continued service was inconsistent with the priorities of the Trump Administration.
Established in 1914, the FTC is a bipartisan, independent agency responsible for safeguarding the American economy from unfair competition practices. By legal standards, the five-member commission must include no more than three members from the same political party. Additionally, commissioners can only be dismissed for reasons such as inefficiency, neglect of duty, or malfeasance. Slaughter was not provided with any justification for her removal, prompting her to file a lawsuit. A lower court ruled that her dismissal was unlawful and ordered her reinstatement. However, the Trump administration appealed this decision, leading the Supreme Court to issue an emergency order in September that temporarily upheld her firing while the merits of the case are reviewed. The justices voted 6 to 3 along ideological lines to allow her removal to stand for the time being.
The current case draws parallels to a historical incident from 1933, when President Franklin D. Roosevelt attempted to dismiss an FTC commissioner due to ideological disagreements. In the landmark case known as Humphrey's Executor, the Supreme Court unanimously determined that while the President could remove executive officers for any reason, this power did not extend to independent agencies like the FTC, whose functions are primarily quasi-judicial and quasi-legislative. Following this 1935 ruling, Congress established numerous additional multimember independent agencies, all of which share the same removal protections.
Since January, the Trump administration has also dismissed Democratic members from various independent agencies, including the Equal Employment Opportunity Commission, the Merit Systems Protection Board, and the Consumer Product Safety Commission. In the case of Slaughter, the Trump administration contends that the Supreme Court's previous decision in Humphrey's Executor was fundamentally flawed, claiming it stemmed from a misunderstanding of the FTC's role at that time. The administration argues that the FTC has exercised executive powers that have expanded significantly over the years.
During Trump’s presidency, the Supreme Court began to erode the foundation laid by Humphrey's Executor by permitting the dismissal of the head of the Consumer Financial Protection Bureau. In that instance, the Court ruled the firing was lawful because the CFPB operates under a single director, unlike the multimember boards. Chief Justice John Roberts described Humphrey's Executor as relevant only to multimember agencies that do not possess substantial executive power. Recently, the D.C. Circuit Court of Appeals echoed this sentiment, ruling 2-to-1 that Trump’s dismissals of members from the Merit Systems Protection Board and the National Labor Relations Board were legal due to the significant executive powers these agencies wield.
Rebecca Kelly Slaughter has expressed the importance of maintaining the autonomy of bipartisan multimember agencies, arguing that their independence is crucial for objective decision-making focused on facts and the protection of American interests. “That is what Americans deserve from their government,” she asserted. Conversely, James M. Burnham, an attorney with experience in both Trump administrations, holds a contrasting perspective. He argues that true independence for agencies is a myth since all entities must exist within one of the three branches of government. Burnham believes that the protections against removal have been unconstitutional from the outset.