US supreme court hears arguments over Trump’s power to fire FTC member
2025-12-08 15:56
The US supreme court is hearing arguments on Monday concerning the legality of Donald Trump’s firing of a Federal Trade Commission member in a major test of presidential power, with a justice department lawyer asking the justices to overrule a 90-year-old legal precedent.
The justice department has appealed a lower court’s decision that the Republican president exceeded his authority when he moved to dismiss Rebecca Slaughter, the Democratic FTC member, in March before her term was set to expire.
The case gives the court, which has a 6-3 conservative majority, an opportunity to overturn a New Deal-era supreme court precedent in a case called Humphrey’s Executor v United States that has shielded the heads of independent agencies from removal since 1935.
“Humphrey’s must be overruled,” said D John Sauer, the US solicitor general arguing for the Trump administration, to the justices at the outset of the arguments.
Humphrey’s Executor stands as an “indefensible outlier” to the court’s other precedents that has “not withstood the test of time”, Sauer said.
Sauer said the existence of the Humphrey’s Executor precedent “continues to tempt Congress to erect, at the heart of our government, a headless fourth branch insulated from political accountability and democratic control”.
The constitution set up a separation of powers among the US government’s coequal executive, legislative and judicial branches.
“You’re asking us to overturn a case that has been around for nearly 100 years,” the liberal justice Sonia Sotomayor told Sauer.
Independent agencies are government entities whose heads have been given tenure-protected terms by Congress to keep these offices free from political interference by presidents.
Sotomayor said independent agencies had 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 a unqualified removal power,” Sotomayor said, adding, “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.“
A 1914 law passed by Congress permits a president to remove FTC commissioners only for cause – such as inefficiency, neglect of duty or malfeasance in office – but not for policy differences. Similar protections cover officials at more than two dozen other independent agencies, including the National Labor Relations Board and Merit Systems Protection Board.
The conservative justice Brett Kavanaugh expressed concern to Sauer about threatening the independence of the Federal Reserve, the US central bank.
Kavanaugh asked Sauer: “How would you distinguish the Federal Reserve from agencies such as the Federal Trade Commission?” In another case involving presidential powers, the court will hear arguments on 21 January in Trump’s attempt to remove Lisa Cook, the Federal Reserve governor, a move without precedent that challenges the central bank’s independence.
Justice department lawyers representing Trump have advanced arguments embracing the “unitary executive” theory. This conservative legal doctrine sees the president as possessing sole authority over the executive branch, including the power to fire and replace heads of independent agencies at will, despite legal protections for these positions.
Slaughter was one of two Democratic commissioners who Trump moved to fire in March from the consumer protection and antitrust agency before her term expires in 2029. The firings drew criticism from Democratic senators and antimonopoly groups concerned that the move was designed to eliminate opposition within the agency to big corporations.
Loren AliKhan, a Washington-based US district judge, in July blocked Trump’s firing of Slaughter, rejecting his administration’s argument that the tenure protections unlawfully encroached on presidential power. The US court of appeals for the District of Columbia circuit in September in a 2-1 decision kept AliKhan’s ruling in place.
But the supreme court later in September allowed Trump’s ouster of Slaughter to go into effect – an action that drew dissents from its three liberal justices – while agreeing to hear arguments in the case.
The supreme court is expected to rule by the end of June.