The Supreme Court agreed on Monday to hear a case challenging President Donald Trump’s firing of a Democrat-appointed member of the Federal Trade Commission, taking up a case with wider implications for a president’s ability to remove independent agency heads.
The unsigned order allows Trump to fire FTC Commissioner Rebecca Slaughter for now while also teeing up the justices to hear oral arguments sometime in December.
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The high court’s order asks the Trump administration and Slaughter to focus their arguments on two questions. The first question is “whether the statutory removal protections for members of the Federal Trade Commission violate the separation of powers,” and if so, should the Supreme Court overrule its 1935 decision in Humphrey’s Executor v. United States. The second question asks “whether a federal court may prevent a person’s removal from public office, either through relief at equity or at law.”
The Humphrey’s ruling found that then-President Franklin Delano Roosevelt could not fire an FTC commissioner at his discretion and could only fire him “for cause,” as outlined in the law passed by Congress authorizing the creation of the FTC. The question of whether Trump has the authority to fire independent agency heads has landed on the Supreme Court’s emergency docket twice in recent months, with the high court allowing the firings to go forward in the interim.
For the Supreme Court to take up a case for oral arguments, four justices must vote in favor of doing so. The order did not specify how many justices voted in favor of taking up Trump v. Slaughter.
Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson offered a dissent to the high court’s decision to allow Slaughter to be fired while the case plays out, with a dissenting opinion written by Kagan. The dissent argued the stay should not have been granted because the Humphrey’s precedent is still the ruling opinion, rather than earlier orders on the emergency docket.
“The President cannot, as he concededly did here, fire an FTC Commissioner without any reason. To reach a different result requires reversing the rule stated in Humphrey’s: It entails overriding rather than accepting Congress’s judgment about agency design. The majority may be raring to take that action, as its grant of certiorari before judgment suggests. But until the deed is done, Humphrey’s controls, and prevents the majority from giving the President the unlimited removal power Congress denied him,” Kagan wrote.
Kagan also bemoaned the recent orders the majority has issued on the emergency docket, which she argued have undermined established precedent by the high court.
“Our emergency docket should never be used, as it has been this year, to permit what our own precedent bars. Still more, it should not be used, as it also has been, to transfer government authority from Congress to the President, and thus to reshape the Nation’s separation of powers,” Kagan wrote.
APPEALS COURT’S FTC REINSTATEMENT SETS UP LIKELY SUPREME COURT CLASH OVER HUMPHREY’S EXECUTOR
Trump asked the Supreme Court to allow him to fire Merit Systems Protection Board member Cathy Harris and National Labor Relations Board member Gwynne Wilcox as their cases played out, which the high court agreed to earlier this year. Both Harris and Wilcox had asked the justices to consider their cases for full arguments if the Supreme Court agreed to hear Slaughter’s case, but in an unsigned order, the high court declined to take up their case.
The Supreme Court’s Monday order taking up the FTC firing case marks the second time this month the justices have agreed to take up a case involving a Trump administration action, after the high court agreed to take up a challenge to Trump’s “Liberation Day” tariffs. Oral arguments for the tariffs case are scheduled for Nov. 5.