U.S. Supreme Court temporarily allows Trump to replace FTC commissioner, considers overturning historic precedent protecting members of federal agencies

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The U.S. Supreme Court on Monday allowed President Trump to temporarily remove Rebecca Slaughter from her position as a commissioner of the Federal Trade Commission (FTC). The three liberal justices of the Supreme Court dissented from this decision.

Slaughter’s removal will take effect while the justices consider whether to overturn a decades-old precedent that protects members of federal agencies from being dismissed by the president without just cause.

Slaughter was appointed as the Democratic seat commissioner of the FTC during Trump’s first term and was later renominated by former President Biden. In March of this year, Trump removed her, after which she filed a lawsuit.

Two levels of lower federal courts had previously denied Trump’s request to remove Slaughter during the ongoing litigation. The Court of Appeals for the District of Columbia found that granting the request would violate the Supreme Court’s 1935 “Humphrey’s Executor” decision, which explicitly prohibits the president from arbitrarily removing FTC commissioners.

But on Monday, the Supreme Court approved Trump’s request by a vote of 6 to 3, temporarily overturning the lower court’s order to reinstate Slaughter.

Meanwhile, the Supreme Court agreed to formally hear the case and scheduled proceedings according to Chief Justice John Roberts’ decision, with oral arguments expected in December.

The justices will consider whether the precedent set by the Humphrey case should be overturned, and whether federal courts can prevent someone from being removed from office.

Justice Elena Kagan wrote in her dissent:

Agencies like the FTC are independent agencies whose members serve staggered terms and can only be removed for just cause. However, the majority, time and again, through stays, has handed full control of these agencies over to the president.

Kagan’s dissent was joined by Justices Sonia Sotomayor and Ketanji Brown Jackson.

Kagan pointed out:

The majority—despite Congress’s different provisions—now says that the president can dismiss any commissioner at will, for any or no reason, thus undermining the bipartisan nature and independence of these agencies.

The Supreme Court’s conservative majority (including the three justices appointed by Trump) may be eager to overturn the Humphrey decision. But until this is actually done, Humphrey remains in effect, and it prevents the majority from giving the president unlimited removal power that Congress refused to grant.

Because the majority’s stay achieves exactly that, I respectfully dissent. Our emergency docket should never be used, as it has been this year, to permit actions violating our own precedent.

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