Supreme Court Says Donald Trump Can Remove Democratic FTC Commissioner, Strengthening POTUS Powers Over Federal Agencies

The Supreme Court ruled that Donald Trump was within his authority to remove a commissioner on the Federal Trade Commission, giving a boost to his efforts to exert more control over what have been considered independent federal agencies.

Rebecca Slaughter, one of two Democrats on the FTC, had challenged her removal last year, arguing that she was protected by a law that she only could be fired for “inefficiency, neglect of duty, or
malfeasance in office.”

In the majority opinion, Chief Justice John Roberts wrote, “Although it is up to the Senate to decide whether to confirm those with whom the President would prefer to work, neither Congress nor the courts may saddle him with those with whom he cannot work. Subordinates who exercise the President’s power are subject to removal by him. Then, and only then, can they remain accountable to the President, and the President to the people.”

Her removal also raises the question of whether Trump will seek to fire the sole Democrat on the FCC, Anna Gomez. But doing so would leave the commission with just two members, Chairman Brendan Carr and Commissioner Olivia Trusty, short of a quorum. The Senate would have to confirm another commissioner before the panel could pass legally binding rules.

Gomez told reporters last week, “You know, I’m still here, and I intend to continue to fight for consumers, to promote innovation and to protect free expression for as long as I can.” She has been an outspoken critic of Trump and Carr, particularly for their attacks on the media. She told reporters that she is “assuming the quorum is a good reason” why she has not been removed.

In a statement later on Monday, Gomez said, “When commissioners can be removed for their policy views rather than for cause, the inevitable result is an agency that pulls its punches and defers to political winds rather than the record before it. Consumers pay the price for that kind of regulatory timidity in higher costs, fewer choices, and slower progress toward the connected future this country deserves.”

The FTC currently has just two commissioners, Chairman Andrew Ferguson and Commissioner Mark Meador. But it has different quorum requirements that allow for just two commissioners, although that, too, is the source of some dispute.

The court’s decision overturned a 1935 precedent — in Humphrey’s Executor vs. the United States — that allowed Congress to place limits on the president’s powers to remove officials in independent agencies.

Roberts wrote, “The FTC’s for-cause removal provision violates the separation of powers. In its present form, the FTC enforces and administers some 80 statutes, which cover almost every facet of our Nation’s economy. The tasks it undertakes are ‘the very essence of ‘execution’ of the law’ —precisely the President’s constitutional role.”

In her dissent, Justice Sonia Sotomayor wrote, “Today, the Court discards that democratic regime in favor of one that distorts the structure of Government to fit the majority’s theory of unitary, total executive control. The result is a President who emerges with far greater power than ever before. It is a power, however, that neither the People, nor Congress, nor the Constitution bestowed upon him. In granting the President this unbridled authority, the Court upends its precedent, misconstrues our history, and sheds any pretense of judicial modesty.”

Trump reacted to the decision on Truth Social, writing, “BIG WIN just moments ago at the Supreme Court, in the Slaughter Case, confirming Presidential Power in our Country to remove Executive Branch Officers and Agency Appointees, or Representatives, under Article II. This Decision was long sought by United States Presidents, dating all the way back to the 1930s. It is such an Honor to be the sitting President who won this Historic and Unprecedented Ruling, one of the most important ever given with respect to Presidential Powers. Thank you for your attention to this matter!”

Slaughter told CNBC that the ruling “Hands a massive amount of power away from Congress to the president to shape economic decision making in a way that will reward the rich and powerful at the expense of ordinary Americans.”

Asked if she was surprised by the ruling, Slaughter said, “I am shocked when the court overturns a unanimous 91-year-old precedent that has been used to shape so much of our government institutions. … I knew this is where the president wanted to go. If the Supreme Court wasn’t considering it, they wouldn’t have agreed to hear the case.”

The Supreme Court did reject Trump’s attempt to immediately remove Lisa Cook, a governor on the Federal Reserve, although their decision was not made on the underlying facts of the case. Rather, that will be left to future proceedings in lower courts.

Trump also fired another FTC commissioner, Alvaro Bedoya, but he dropped his challenge after formally resigning from the commission.

While Trump’s firings removed dissenting voices from the commission, Republicans still would have likely held a majority on the FTC if it operated with a full slate of five members. The Supreme Court ruling likely will send a message even from a president’s own party that they risk being removed if they stray from the White House desires.

Trump has previously expressed chided his own appointees for some of their rulings. In 2018, Ajit Pai, who the president tapped in his first term to chair the FCC, moved to send Sinclair’s proposed merger with Tribune to an administrative law judge, leading to the unraveling of the transaction. Trump blasted the decision as “disgraceful,” but Pai stayed in his role.

Get our Breaking News Alerts and Keep your inbox happy.

What did she do to violate “inefficiency, neglect of duty, or
malfeasance in office.” though? Did the Trump administration prove any one or more of these?

It would seem that if you “saddle” congress with a confirmation, you can do so with a removal provided they, and/or the president, has actual just cause to do so outside of any obvious violation of other laws.

People defending this majority decision citing the agencies which fall under the perview of the Executive Branch seem to ignore the dissenting opinions, particularly what was written by Justice Santamayor. Just because the obviously conservative justices in the majority are totally fine with giving Trump, er, the Executive Branch more power doesn’t mean that it’s the right thing to do. Firing agency heads for political reasons without cause is not good for the country.

But you win some and you lose some. So, on a separate note: lost in the rulings today, was the SCOTUS turning down Trump’s appeal of the jury’s verdict in the E. Jean Carroll trial. He has to pay her $5M for sexual assault and defamation for the first trial. That is your President of the United States, ladies and gentlemen.

Federal agencies are under the purview of the Executive branch.