The Supreme Court is preparing to expand Donald Trump’s presidential authority over the ability to control federal agencies, apparently aimed at supporting the president’s request to be able to fire members of the commissions that run them.
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After almost a century of a rule that has restricted US presidents from firing members of federal agencies without cause, the Supreme Court seems inclined to modify its criteria and allow Donald Trump to fire a member of the Federal Trade Commission (FTC), Democrat Rebecca Slaughter, without cause.
The court’s conservative majority suggested Monday that it would overturn a 90-year-old unanimous decision that limits when presidents can fire agency board members — in part to try to ensure that decision-making is free of political influence — or leave them with only their structure intact.
Justice Brett Kavanaugh said the heart of the matter is that the officials who run the agencies “wield enormous power over individual liberty and over billion-dollar industries” without being accountable to anyone.
The liberal justices warned that a ruling sought by the Trump administration to overturn the decision known as Humphrey’s Executorfrom 1935, would give the president, as Justice Elena Kagan put it, “enormous, unchecked, and unchecked power.”
Agencies that have been in operation for a century or more would also be deprived of their expertise, Judge Ketanji Brown Jackson said.
“For a president to come in and fire all the scientists, doctors, economists and doctors, and replace them with people who are loyal and know nothing, really doesn’t benefit the citizens of the United States,” Jackson said.
Slaughter was fired without cause, and lower courts upheld her claim that the move violated rules established by Congress to protect members of independent government agencies.
Trump administration alleges a “power vacuum”
The Justice Department appealed to the Supreme Court, and conservative justices appeared to side with the administration during oral arguments Monday.
Attorney General John Sauer, representing the government, urged the justices to overturn the historic 1935 ruling, saying the current situation amounts to a “power vacuum.”
He also asserted that the president, as head of the executive branch, should have the authority to remove members of the FTC and the other two dozen similarly structured independent agencies at will.
“The real consequences here are that you have people wielding enormous government authority with enormous control over individuals and businesses … who are ultimately not answerable to the president,” Sauer said.
“We believe that the text of the Constitution vests executive power, in its entirety, in the president.”
No president before Trump had attempted to wrest control of agencies that regulate broad swathes of American life, such as nuclear energy, product safety and labor relations. But the six conservatives, including three Trump appointees, seemed more concerned with subverting precedent.
The rhetoric was reminiscent of the 2024 presidential immunity case that allowed Trump to avoid prosecution for his efforts to overturn the results of the 2020 election.
According to Sauer, the Humphrey’s Executor decision “has not stood the test of time” and has led to a leaderless “fourth branch” of government, the administrative state that conservatives and business interests have been targeting for decades.
The FTC’s primary role is to protect the American public from deceptive or unfair business practices, and it has taken on Apple, Amazon, Google and Meta, Facebook’s parent company, over their use of market power.
The FTC is made up of five commissioners, who typically represent the two major political parties, and a chairperson appointed by the president.
Decisions tilted in favor of Trump
The court’s conservative wing has already signaled support for the government’s position, over liberal objections, by allowing Slaughter and other agency board members to be removed from office, even as their legal challenges continue.
Members of the National Labor Relations Board, the Merit System Protection Board and the Consumer Product Safety Commission have also been fired by Trump.
The only officials who have so far survived attempts to remove them are Lisa Cook, governor of the Federal Reserve, and Shira Perlmutter, copyright officer at the Library of Congress.
The court has suggested it will view the Federal Reserve differently from other independent agencies, and Trump has said he wants her gone because of the mortgage fraud allegations. Cook claims he did nothing wrong.
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