Court experts said there was a rather “sleepy” two-plus hours of back-and-forth questioning following the U.S. Supreme Court hearing oral arguments Monday in Trump v. Slaughter.
But the case itself — testing a president’s power to remove federal officials — will have major ramifications.
Advisory Opinions host Sarah Isgur said in a live broadcast with SCOTUS blog following the arguments that, “This did not feel like the exciting case where we’re talking about redoing the administrative state and overturning Humphrey’s Executor; it felt a little sleepy.”
The center of the argument in Monday’s case lies in the 1935 Supreme Court ruling of Humphrey’s Executor v. United States, in which the justices ruled that the Constitution doesn’t give the president the same removal power over every federal officer. Some roles must be fully under presidential control; others can be protected from political firing — in this case, FTC commissioners.
Isgur also noted that the justices were pretty predictable in their questioning, meaning there’s a good chance we already know what the outcome will be.
What led this case to SCOTUS?
On March 18, President Donald Trump fired FTC Commissioner Melissa Slaughter. In Slaughter’s termination email, a statement from Trump read, “Your continued service on the FTC is inconsistent with my Administration’s priorities. Accordingly, I am removing you from office pursuant to my authority under Article II of the Constitution.”
Slaughter then sued the president and the remaining sitting FTC commissioners for firing her without statutory cause.
The FTC is an independent federal agency established in 1914 by the Federal Trade Commission Act. Its mission is to protect American consumers from “unfair methods of competition through law enforcement, advocacy, research, and education.” The agency is headed by five commissioners, nominated by the president and confirmed by the Senate, who then serve seven-year terms, and no more than three can be from the same political party.
To separate the FTC’s goals from executive political pressure, the Act limited the president’s ability to remove a commissioner to “inefficiency, neglect of duty, or malfeasance in office.”
Last September, Chief Justice John Roberts paused all rulings made by lower courts in Trump v. Slaughter and granted certiorari.
Here are the main inquiries the justices are faced with, according to Isgur:
- Do you overturn Humphrey’s Executor?
- Don’t overturn it, but allow Trump to fire Slaughter, because the FTC from even 50 years ago is not the same FTC today.
- Or, this is all fine, and Congress should have separate independent power from the president in this regard.
Main points in oral arguments
U.S. Solicitor General D. John Sauer argued on behalf of the Trump administration, making the point that the case is all about returning the dominant line of authority back to the president.
“The court has repudiated Humphrey’s reasoning and confined it to its facts, but it continues to generate confusion in the lower courts, and it continues to tempt Congress to erect at the heart of our government a headless fourth branch insulated from political accountability and democratic control.”
Sauer contends that the fourth branch consists of heads of independent federal agencies, such as the FTC, who misuse executive powers like rule making and enforcement. He argues they should not do so because they lack the accountability to American citizens that the president has.
Humphrey’s should be “overruled,” Sauer said, because “there’s a strong line of precedent recognizing that the text and structure of the Constitution confer on the president the exclusive and illimitable power to remove executive officers.”
The primary pushback he received came from liberal justices on the court. Their main concerns seemed to be in requesting the court to overturn a 90-year-old precedent and what that would mean down the road for other federal agencies.
“Congress is saying that expertise matters with respect to aspects of the economy and transportation and the various independent agencies that we have so having a president come in and fire all the scientists and the doctors and the economists and the Ph.D.s and replacing them with loyalists and people who don’t know anything is actually not in the best interest of the citizens of the United States,” Justice Ketanji Brown Jackson argued. “This is what I think Congress’ policy decision is when it says that these certain agencies we’re not going to make directly accountable to the President.”
It’s Slaughter’s attorney Amit Agarwal’s argument that if the Trump administration is correct in their firing of Slaughter, then more than 100 years of precedent is invalid.
“If petitioners are right, all three branches of government have been wrong from the start,” Agarwal said. “Congress and prior presidents have been wrong to jointly create early founding era commissions, and more than two dozen traditional independent agencies since 1887, and this Court was wrong to repeatedly bless those laws and to unanimously uphold the exact same removal provision at issue here and Humphrey’s Executor almost a century ago.”
The emergence of the unitary executive in a strong form by the Trump administration, he argued, does not necessarily mean it was the best or most accurate approach.
“The whole point of this structure is to guarantee a modicum of stability that private, regulated entities can depend upon, and that is jeopardized by at will presidential removal,” Agarwal added.
Despite years of unchanged law, Georgetown University professor Stephanie Barclay told the Deseret News in a statement that, based on Monday’s arguments, “I expect the Court to rule that the president generally must be able to control executive branch agencies, including through removal of agency heads. The Constitution’s Article II Vesting Clause places executive power in the president alone, and the Justices appeared persuaded that political accountability requires a clear chain of command — when agencies act, voters should know whom to hold responsible.”