President Trump took his fight to fire Federal Trade Commission (FTC) leaders without cause to the Supreme Court on Thursday, a move that could prompt the justices to overrule a key precedent blessing removal protections at the agency for decades.
Trump’s bid to fire Rebecca Slaughter, a Democrat appointed to the FTC in 2018, comes as part of the administration’s broader effort to eviscerate restrictions that provide certain agencies with a degree of independence from the White House.
Lower courts reinstated Slaughter under the Supreme Court’s 1935 decision, Humphrey’s Executor v. U.S., that has long served as legal justification for the removal protections.
The precedent’s future, however, has increasingly come into question under recent decisions from the court’s conservative majority. Adding to the doubts, the justices have sided with Trump twice already in his firings at other independent agencies.
Unlike those cases, the FTC was the very agency at issue in Humphrey’s Executor. So on Tuesday, the U.S. Court of Appeals for the District of Columbia Circuit voted 2-1 that despite the recent developments, Trump still couldn’t fire Slaughter at will because the precedent remains on the books.
The administration now wants the Supreme Court to issue an emergency order that immediately permits the firing and also take up the case in full during their upcoming term to settle the issue.
Solicitor General D. John Sauer asserted that the justices don’t necessarily have to overrule the 90-year-old precedent and can instead strike down the FTC removal protections in response to the agency’s expanded authority over the ensuing decades.
“The modern FTC exercises far more substantial powers than the 1935 FTC,” Sauer wrote in court filings.
If the justices disagree, Sauer invited the court to overrule the precedent after full briefing and argument.
Slaughter’s team had no immediate comment.
