Chief Justice John Roberts has issued a temporary stay allowing President Trump to fire recently reinstated FTC Commissioner Rebecca Slaughter, even though she was fired without cause.
Slaughter, the lone Democrat on the Commission, had been reinstated by a divided panel of the U.S. Court of Appeals for the District of Columbia.
The administration has contended that the reinstatement would have a negative impact on it and sought the stay. In addition to the emergency order, Solicitor General D. John Sauer asked the Supreme Court to accept the case for consideration.
The reinstatement harms the Executive Branch by permitting a removed officer to continue exercising executive power despite the President's objection, Sauer wrote in his request for a stay.
"Article II precludes a court from ordering the reinstatement of an executive officer removed by the President," he wrote.
Alvaro Bedoya and Slaughter were dismissed from the FTC 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 and Supreme Court precedent.
Bedoya resigned before he potentially could be reinstated, so Judge AliKhan ruled that his claim was moot.
Slaughter and Bedoya had said that FTC members are protected by the 1935 decision of the Supreme Court in Humphrey's Executor v United States, which upheld the constitutionality of the for-cause removal standard applicable to FTC commissioners.
Judge AliKahn agreed as did two of the judges on the U.S. Court of Appeals for the District of Columbia three-judge panel.
However, the administration argued that the modern-day FTC differs significantly from the FTC that led to Humphrey's Executor and, in particular, that the FTC today exercises significant executive power.
The administration said that unlike the 1935 FTC, the current FTC has broad power to initiate judicial proceedings against private parties. In addition, Sauer wrote, Humphrey's Executor did not discuss rulemaking at all. The modern FTC also has power to investigate potential violations of the law and has foreign relations powers, according to Sauer.
However, Slaughter's attorneys said that Humphrey's Executor involves the same provision of the FTC that Slaughter is seeking to enforce. They said that the District Court found that the facts almost identically mirror those of Humphrey's Executor.
They said that in seeking the administrative stay, the Trump Administration identified no harm that would result from Slaughter's remaining on the commission. They said that in other cases in which Trump sought to fire board members and courts agreed, their continued service could result in actions that would conflict with the President's priorities.
"Here, however, Commissioner Slaughter is the sole Democratic member on a Commission with a three-Republican majority; thus, under Commission rules, 'there is no reasonable prospect that returning Ms. Slaughter to her position will result in any meaningful regulatory action opposed by the Commission majority.'"
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