Supreme Court Seems Likely To Let Trump Fire Independent Agency Heads

The Supreme Court signaled Monday that it’s prepared to hand President Donald Trump another win in his drive to consolidate his power over federal agencies.

During arguments over Trump’s dismissal of Federal Trade Commission member Rebecca Slaughter, the high court’s conservative majority appeared intent on overturning or effectively gutting a 90-year-old precedent that upheld restrictions on the president’s ability to fire leaders of independent agencies across the executive branch.

“I think broad delegations to unaccountable independent agencies raise enormous constitutional and real world problems for individual liberty,” Justice Brett Kavanaugh said during the arguments.

Overturning that precedent, known as Humphrey’s Executor, has become a key goal for conservatives.

“The text and structure of the Constitution confer on the president the exclusive and illimitable power to remove executive officers, and as a result of that Humphrey’s should be overruled,” Solicitor General D. John Sauer told the justices on Monday, repeatedly calling the 1935 ruling “a decaying husk.”

The White House told Slaughter in March that she was fired, without citing any concern about her performance or conduct. A federal appeals court ruled that Slaughter should be reinstated, but the Supreme Court said her dismissal could take effect while it considered the merits of her claim — and now seems poised to rule against her.

Several justices probed the ripple effects of fully overturning Humphrey’s Executor. Chief Justice John Roberts questioned whether it could force independent agencies to jettison some of their responsibilities, and whether it could jeopardize the autonomy of certain courts.

Kavanaugh sought reassurances that such a ruling wouldn’t allow presidents to fire Federal Reserve governors.

“We recognize and acknowledge … that the Federal Reserve is a quasi private, uniquely structured entity that follows a distinct historical tradition,” Sauer said, calling the Fed “sui generis,” or in a category by itself.

The Supreme Court has also lined up for argument next month a case over Trump’s attempt to fire Federal Reserve Board member Lisa Cook. The justices signaled in May that they were inclined for historical reasons to give the Fed more autonomy than other agencies. And in October they issued an order that allowed Cook to stay in her job until the court resolves that fight.

Justices Samuel Alito and Amy Coney Barrett suggested the court could rule for Trump in the FTC case, while leaving the knotty issues around some other agencies for another day. Alito proposed that the court could “reserve decision on those agencies that may not come before us in the near future, or perhaps at any time in the future.”

The court’s liberal justices insisted that wouldn’t be so simple.

“Logic has consequences,” Justice Elana Kagan said. “Once you use a particular kind of argument to justify one thing, you can't turn your back on that kind of argument if it also justifies another thing in the exact same way. … Once you are down this road, it’s a little bit hard to see how you stop.”

The immediate practical effects of the court’s decision could be minimal. The justices have repeatedly agreed to Trump administration requests to remove various federal agency leaders while court fights over their dismissal play out.

A ruling is expected by June.