US supreme court conservatives appear poised to back Trump in FTC firing case
After more than two hours of oral arguments, the court appeared poised to back the Trump administration’s argument that the president should be able to fire independent board members that for almost a century have been protected from presidential interference.
The justices appeared pretty firmly split down partisan lines, with the conservatives – including the sometimes swing vote of Justice Amy Coney Barrett – seeming to side with the administration.
Key events
In a short while we’ll hear from Donald Trump at the White House. He’s set to appear at a roundtable alongside the treasury secretary and agriculture secretary to unveil a new $12bn support package for American farmers. We’ll bring you the key lines here.
Key takeaways from supreme court hearing on FTC firing case
After more than two hours of oral arguments in the high-stakes case of Slaughter v. Trump, the nation’s highest court appeared poised to back a historic expansion of executive power, signaling support for Donald Trump’s firing of independent board members that for almost a century have been protected from presidential whims.
At the heart of the issue is Trump’s March decision to fire Rebecca Slaughter from the Federal Trade Commission (FTC) before the end of her term, despite a federal law designed to insulate the agency from political interference.
John Yoo, who served as a justice department lawyer under George W Bush, told Reuters the case presents “one of the most important questions over the last century on the workings of the federal government”. “The future of the independence of the administrative state is at issue,” he said.
The justices appeared pretty firmly split down partisan lines, with the 6-3 conservative wing – including the sometimes swing vote of Justice Amy Coney Barrett – seeming to side with the Trump administration’s argument that the president should be able to fire members of independent agencies, and expressing scepticism to concerns raised by the other side that this could lead to a significant remaking of the federal government.
Solicitor general John D Sauer repeatedly argued that independent agencies like the FTC are a “headless fourth branch” with limited government oversight and that, in general, “independent agencies are not accountable to the people”. He argued that the key 90-year precedent, Humphrey’s Executor, “must be overruled”, describing the ruling as a “decaying husk with bold, and particularly dangerous pretensions”.
Regarding the 1935 precedent ruling, chief justice John Roberts said, that historic precedent has “nothing to do with what the FTC looks like today”. That decision, he said, “was addressing an agency that had very little, if any executive power”. Justice Samuel Alito also said he was skeptical of wide-ranging ramifications of allowing the president to fire leaders of multi-member independent commissions. Justices Bret Kavanaugh, Roberts and Coney Barrett also aimed to draw distinctions between the FTC and the Federal Reserve, seeming likely to back continuing to shield the Fed from political interference.
The liberal justices, on the other hand, appeared sympathetic to the lawyer for fired FTC commissioner Rebecca Slaughter’s warning that “there are real-world risks that are palpable” in allowing a president the power to fire leaders of independent agencies. Doing so meant that “everything is on the chopping block”, Amit Agarwal said.
Sounding the alarm, liberal justice Sonia Sotomayor said that independent agencies have existed throughout US history. “You’re asking us to destroy the structure of government and to take away from Congress its ability to protect its idea that a government is better structured with some agencies that are independent,” she said. Justice Elena Kagan warned that the court should not ignore “the real-world realities” of what its decisions do. “The result of what you want is that the president is going to have massive, unchecked, uncontrolled power,” she told Sauer. “What you are left with is a president … with control over everything.”
Justice Ketanji Brown Jackson also expressed doubt that more presidential firing power is better for democracy and emphasized that centering so much power under presidential control would undermine issues that Congress decided should be handled by nonpartisan experts in independent agencies. “Having a president come in and fire all the scientists, and the doctors, and the economists and the PhDs, and replacing them with loyalists and people who don’t know anything is actually not in the best interest of the citizens of the United States,” she said.
A decision in the case is expected before the end of June next year.
Liberal justice Ketanji Brown Jackson also expressed doubt that more presidential firing power is better for democracy.
“You seem to think that there’s something about the president that requires him to control everything as a matter of democratic accountability, when, on the other side, we have Congress saying we’d like these particular agencies and officers to be independent of presidential control for the good of the people,” she told Sauer.
Jackson also emphasized that centering so much power under presidential control would undermine issues that Congress decided should be handled by non-partisan experts in independent agencies.
So having a president come in and fire all the scientists, and the doctors, and the economists and the PhDs, and replacing them with loyalists and people who don’t know anything is actually not in the best interest of the citizens of the United States.
And to expand on liberal justice Sonia Sotomayor’s comments that we reported earlier, she said independent agencies have existed throughout US history, and challenged Sauer to explain why the court should make such a drastic change to the structure of government.
Neither the king, nor parliament nor prime ministers in England at the time of the founding [of the United States] ever had an unqualified removal power.
You’re asking us to destroy the structure of government and to take away from Congress its ability to protect its idea that a government is better structured with some agencies that are independent.
Earlier, liberal justice Elena Kagan said the court should not ignore “the real-world realities” of what its decisions do. She told Sauer:
The result of what you want is that the president is going to have massive, unchecked, uncontrolled power – not only to do traditional execution, but to make law through legislative and adjudicative frameworks.
What you are left with is a president … with control over everything, including over much of the lawmaking that happens in this country.
Sauer countered that the impact would be the president “having control over the executive branch, which he must and does have under our constitution”.
US supreme court conservatives appear poised to back Trump in FTC firing case
After more than two hours of oral arguments, the court appeared poised to back the Trump administration’s argument that the president should be able to fire independent board members that for almost a century have been protected from presidential interference.
The justices appeared pretty firmly split down partisan lines, with the conservatives – including the sometimes swing vote of Justice Amy Coney Barrett – seeming to side with the administration.
Issuing his brief rebuttal, the administration’s lawyer, solicitor general D John Sauer, encourages the court to overturn the nearly century-old decision protecting board members from removal, calling it a “decaying husk”, and to “restore the separation of powers to our government”.
He says that if the justices construe the president’s powers narrowly, “then we have a situation where Congress could erect virtual, reconstruct, virtually the entire executive branch outside the president’s control.
“And that is not even a republican form of government,” he adds. “But that is the logic of the position that’s being advanced here. That is the parade of horrible as the court ought to consider.”
Agarwal says he absolutely accepts the interpretation of the vesting clause of Article II that established a general default presidential removal power, “but the constitutional text clearly delineates the boundary between the president’s power and Congress’s power with respect to removal”.
In addition, Agarwal highlights the vast historical scholarship that indicates the original understanding “that significant governmental authority absolutely could be vested in commissions that were not subject to plenary presidential control, that every single member was not subject to presidential control”.
Agarwal cites historical evidence that “affirm a rich body of recent historical scholarship that supports the conclusion that the history surrounding this issue is at a minimum contestable”.
And there is a whole lot of history that supports the proposition that the first president of the United States and the first Congress did not believe that the president always and everywhere had to have absolute, illimitable, indefeasible power to fire every single head of any kind of commission exercizing any significant governmental authority.
He says he’s asking the court to give effect not just to the decision of 1789, but also to the decision of 1790.
The other side wants a “maximalist interpretation” of the 1790 decision, he says. That decision settled the question of whether the Senate should be able to interfere with presidential removals, he agrees, but everything else is highly contestable at a minimum.
“That is all the more reason for this court to be cautious in developing heavy-handed constitutional rules that don’t have a clear basis in constitutional text,” he says.
Justice Sotomayor says that most of the original powers of the FTC when Humphrey’s was decided are the same powers that exist today. She points out that the district judge outlined this as well.
The only power she’s identified that might be different is that the FTC’s cease-and-desist orders now have binding effect immediately, she says.
“So I think your point in response to Justice Alito is, if there’s a power that the FTC is wielding now that trenches inappropriately, the answer is not to do away with the ‘for cause’ removal; the answer is to eliminate that individual power,” she says. “So that should be the answer if there’s been an expansion of the powers inappropriately.”
Agarwal says that is correct and that is their position.
A quick reminder that, in September, the supreme court granted a justice department request to block a lower court’s order that shielded Rebecca Slaughter, from being dismissed from the consumer protection and antitrust agency before her term expires in 2029. She will remain fired until the court issue their decision.
While answering questions from justices today, Agarwal said that the “real world danger” if the administration is successful, is that “everything is on the chopping block”.
He added that there was “absolutely no principled basis” for “carving out” independent agencies from Congress’s purview.
“We’re talking about more than two dozen traditional independent agencies that have been established by statutes enacted by the people’s elected representatives and signed into law, all of them by democratically elected presidents,” Agarwal said.
Lawyer for fired FTC member says removal protection ‘has been part of our story since 1790’
The bench just wrapped its questions to the administration’s lawyer, solicitor general D John Sauer.
Arguing on behalf of Rebecca Kelly Slaughter, the fired Democratic member of the FTC, is Amit Agarwal.
“Multi-member commissions with members enjoying some kind of removal protection have been part of our story since 1790,” Agarwal said in his opening remarks. “So if petitioners are right, all three branches of government have been wrong from the start.”
Justice Jackson is now pushing back against the administration’s claims that these independent agencies aren’t answerable to Congress – which delegates their creation, oversight, budgets and laws.
“Part of your argument seemed to revolve around this notion that there’s some kind of thing happening with the independent agency that the reason why the president needs to control it is because they don’t answer to anybody,” she said.
“What I don’t understand from your overarching argument is why that determination of Congress, which makes perfect sense given its duty to protect the people of the United States, why that is subjugated to a concern about the president not being able to control everything.”
As he responds to questions from justices today, Sauer has repeatedly argued that independent agencies like the Federal Trade Commission (FTC) are a “headless fourth branch” with limited government oversight.
When responding to questions from justice Brett Kavanaugh, the solicitor general said that these agencies exercise “a great deal of control over individuals and business” but “ultimately do not answer to the president”.
