In March of this year, Rebecca Slaughter, a former commissioner for the Federal Trade Commission (FTC), filed suit against President Trump after he fired her for “inconsistency with the administration’s priorities”. The FTC is an agency led by five commissioners that serve seven-year-terms upon appointment by the President and confirmation by the Senate. In 2018, Slaughter was appointed by Trump.
The FTC Act of 1914 established independence for the Commission from the executive branch, limiting the president’s authority to remove commissioners from office. In Myers v. U.S. (1926), the Court held that the president did have the power to remove officers within the executive branch, but the FTC does not fall under the executive branch’s jurisdiction.
This principle was upheld in a 1935 Supreme Court case, Humphrey’s Executor v. U.S., in which it was established that President Hoover could not fire a commissioner based on policy because the Constitution did not grant him that power.
Essentially, over a century of precedent has sustained the concept of an independent FTC whose commissioners cannot be dismissed to support a president’s political agenda. The president may only remove commissioners for “inefficiency, neglect of duty, or malfeasance in office”. When fired by Trump, Slaughter was not informed that her dismissal was due to any of these reasons.
The main issue at hand is whether or not the Supreme Court will expand the executive branch’s authority under the “unitary executive” theory – the belief that the president should have complete control over the executive branch, including all independent agencies like the FTC – in a completely unprecedented ruling. It is important to note that throughout Trump’s second term, the Supreme Court has been widely criticised for often siding with Trump over precedent and Constitutional principles. In a two-hour hearing last week, a majority of justices seemed to side with the Trump Administration.
In court, Slaughter has argued the doctrine of stare decisis, which states the Court should avoid overturning precedents (like Humphrey’s Executor) without solid reasoning. The Trump administration has stated that Article II of the Constitution places executive power in the hands of the president, giving him control over those who execute laws (commissioners).
Lower courts have ruled in favor of Slaughter. D.C. District Judge Loren Alikhan ordered her reinstatement. The Trump administration asked for this order to be put on hold in September while appealing the decision, but the D.C. Circuit rejected this plea. However, as arguments have been heard in front of the Supreme Court, it seems apparent that Justices are set to rule in favor of increasing the president’s power and scope within the executive branch.
