A divided Supreme Court on Monday allowed President Trump to fire one of the leaders of the Federal Trade Commission, the latest in a series of emergency orders enabling the president to remove Democratic members of several independent agencies.
Mr. Trump had fired Rebecca Kelly Slaughter and Alvaro Bedoya, two Democratic members of the F.T.C., in March. The federal agency, which enforces consumer protection and antitrust laws, typically has five commissioners — three from the president’s party and two from the opposing party.
After their firing, the two commissioners had said they planned to challenge their removal in court, relying on a 1935 landmark Supreme Court case, Humphrey’s Executor v. United States, that also involved the firing of an F.T.C. commissioner.
In its brief order Monday, the court said it would consider in December the broader question of whether to overturn the 90-year-old precedent that has prevented presidents from removing independent regulators without cause and solely over policy disagreements.
The decision by the court’s conservative majority to allow Mr. Trump to remove Ms. Slaughter drew a dissent from the three liberal justices.
Justice Elena Kagan said her conservative colleagues had essentially allowed the president to take charge of agencies Congress intended to protect from partisanship.
She wrote that the court’s majority, order by order, “has handed full control of all those agencies to the president.”
The justice continued: “He may now remove — so says the majority, though Congress said differently — any member he wishes, for any reason or no reason at all. And he may thereby extinguish the agencies’ bipartisanship and independence.”
Justice Kagan was joined by Justices Sonia Sotomayor and Ketanji Brown Jackson.
In a series of cases, the Supreme Court has signaled a willingness to potentially overrule the precedent and at some point declare that laws shielding agency heads from presidential ouster are unconstitutional. Still, the justices have not yet formally done so.
The justices are separately considering the Trump administration’s request to remove Lisa Cook as a Federal Reserve governor. The Supreme Court has yet to act, but has suggested that the central bank may be insulated from presidential meddling under the law.
Both commissioners in the F.T.C. matter contested their firings, but Mr. Bedoya ultimately resigned in June, saying that he could not continue without income as the case proceeded through the courts. Ms. Slaughter pushed ahead with a lawsuit challenging her firing, arguing that she was terminated without reason and should be allowed to resume her role at the agency.
In July, a U.S. District Court judge ruled for Ms. Slaughter, finding that her firing by Mr. Trump was illegal and that she was a “rightful member” of the agency. The judge, Loren L. AliKhan of the U.S. District Court for the District of Columbia, cited the longstanding Supreme Court precedent, finding that because “those protections remain constitutional, as they have for almost a century, Ms. Slaughter’s purported removal was unlawful and without legal effect.”
The Trump administration then filed for a stay of that decision with the appeals court. In early September, a divided appeals court panel reinstated Ms. Slaughter. In their ruling, judges from the U.S. Court of Appeals for the District of Columbia wrote that the president had fired the commissioner without cause. A commissioner cannot be fired without the required grounds of “inefficiency, neglect of duty or malfeasance in office,” they wrote.
Shortly after, the Trump administration asked the Supreme Court to weigh in and allow the president to fire Ms. Slaughter. In court filings, Solicitor General D. John Sauer argued that the justices should find that the president had the authority to fire Ms. Slaughter, claiming that lower courts had “applied an overly expansive” view of Supreme Court precedent. Mr. Sauer maintained that the F.T.C. had changed in recent decades, amassing “considerable executive power in the intervening 90 years.”
Mr. Sauer argued that the F.T.C. case was “indistinguishable” from other firings of federal agency leaders that the justices have allowed to go forward, including the court’s decision in late July to allow the firing of three Democratic members of the Consumer Product Safety Commission, a five-member group that monitors the safety of items like toys, cribs and electronics.
On Sept. 8, Chief Justice John G. Roberts Jr. issued an order temporarily allowing Mr. Trump’s firing of Ms. Slaughter while the court considered the administration’s emergency application.
In response to the Trump administration’s court filings, lawyers for Ms. Slaughter again pointed to Supreme Court precedent, arguing that her firing was illegal.
“Ninety years ago, this court was tasked with deciding whether the president may fire a commissioner of the Federal Trade Commission without cause,” they wrote in a brief to the justices. “The court ruled that he may not.”
A decision to allow the president to fire Ms. Slaughter, her lawyers argued, would mean “the agency Congress created would be severely wounded and radically transformed.”