For now, the Supreme Court is allowing President Trump to fire Democratic FTC Commissioner Rebecca Slaughter, in a case that could upend a 1935 court precedent.
Significantly, in an unsigned order, the Court agreed to hear the case, even though there has been no final decision on the merits by a lower court. The Court scheduled oral arguments in the case for December.
The three liberal justices, Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson dissented.
Alvaro Bedoya and Slaughter were dismissed from the FTC without cause earlier this year. They filed suit, contending that their dismissals were illegal since the FTC is supposed to be an independent agency. They said that Trump's decision was in direct violation of federal law, citing the 1935 Supreme Court ruling, Humphrey's Executor, in which the court upheld the constitutionality of the for-cause removal standard applicable to FTC commissioners.
The administration has argued that the modern FTC is different from the 1935 FTC in that it now exercises significant executive powers and, therefore, FTC commissioners should be subject to removal by the President without cause.
Bedoya resigned from the commission and no longer is part of the suit.
Judge AliKhan of the U.S. District Court of the District ruled that Slaughter had been illegally fired, as did two of the judges on the U.S. Court of Appeals for the District of Columbia's three-judge panel. However, Chief Justice John Roberts issued a stay of the appellate court's order and, now, a majority of the Court has agreed to issue a stay.
In issuing the stay, the Supreme Court directed the parties to brief and argue:
- Whether the statutory removal protections for members of the FTC violate the separation of powers; and if so, should they be overruled?
- Whether a federal court may prevent a person's removal from public office "either through relief at equity or at law."
In their dissent, the three liberal judges said the Court's majority has handed full control of independent agencies to the president.
"He may now remove—so says the majority, though Congress said differently—any member he wishes, for any reason or no reason at all," they said. They added that until the Court reverses Humphrey's, it governs removal of FTC members, and that the Court should not use its emergency docket to take action that is not consistent with Humphrey's.
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