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A divided federal appeals court has ruled that President Trump illegally fired Democratic FTC member Rebecca Slaughter and has ordered that she be reinstated to her position.
"The government has no likelihood of success on appeal given controlling and directly on point Supreme Court precedent," Judges Patricia Millett and Cornelia Pillard of the U.S. Circuit Court of Appeals for the District of Columbia, said. Both are Obama appointees.
Neomi Rao, a Trump appointee, dissented.
Slaughter and Alvaro Bedoya were dismissed from the FTC by President Trump without cause. 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 and Supreme Court precedent. Bedoya formally resigned from the FTC, so he no longer is involved in the case.
Judge Loren AliKhan, of the U.S. District Court for the District of Columbia agreed that Slaughter's firing was illegal and ordered her reinstated. The appeals court initially issued an administrative stay on her reinstatement. The judges have removed that administrative stay.
Slaughter is one of several Democrats Trump has ousted from boards and commissions.
In saying that Slaughter should be reinstated, the two judges repeatedly cited Humphrey's Executor v. United States, a case that involved the firing of an FTC commissioner without cause.
"Specifically, ninety years ago, a unanimous Supreme Court upheld the constitutionality of the Federal Trade Commission Act's for-cause removal protection for Federal Trade Commissioners," the judges said.
They said that since the ruling, the Supreme Court has refused five times to reconsider Humphrey's Executor.
They added, "There is a substantial public interest in having lower courts stay in their lane and leave to the Supreme Court 'the prerogative of overruling its own decisions.'"
They said that other cases have been filed challenging the firing of members of the National Labor Relations Board, the Merit Systems Protection Board and the Consumer Product Safety Commission, but added that courts have not decided whether Humphry's Executor should be extended to protect members of those groups.
In her dissent, Rao said "Federal courts likely have no equitable authority to order the reinstatement of an officer removed by the President."
She said the government suffers a harm from judicial reinstatement of an executive officer removed by the President. She added the district court erred in concluding that Slaughter had demonstrated irreparable harm.
She said that by ordering remaining FTC Commissioners and others to treat Slaughter as a member of the Commission, the district court "expressly orders them to disregard the President's directive."
And she concluded, "I have long thought that Humphrey's Executor should be overruled because it is inconsistent with the Constitution's vesting of all executive power in the President and with more recent Supreme Court decisions."
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