WASHINGTON–With a case involving the firing of two NCUA board members set to be heard in November, the Supreme Court has ruled President Trump may fire a commissioner on the Federal Trade Commission, which, like NCUA, is an independent agency.
The Supreme Court’s emergency order allows the president to fire Rebecca Kelly Slaughter—for now. The court said it would hear arguments in the case in December, which a New York Times analysis said is a “signal that a majority of the court is ready to revisit a landmark precedent limiting presidential authority.”
Similar to the firings in April of NCUA board members Todd Harper and Tanya Otsuka, Trump fired Slaughter and fellow Democratic FTC Commissioner Alvaro Bedoya in March. The FTC has a five-member board, three from the president’s party and two from the other party.
Humphrey’s Executor Cited
After they were fired Slaughter and Bedoya challenged the removal, pointing to the same case that has been cited by the former NCUA board members—the 1935 Supreme Court case, Humphrey’s Executor v. United States, which also involved the firing of an F.T.C. commissioner.
Bedoya, however, resigned in June, saying that he could not continue without income as the case proceeded through the courts
In its brief order, Supreme Court said it would consider in December the broader question of whether to overturn the precedent that has prevented presidents from removing independent regulators without cause and solely over policy disagreements, according to the Times.
Kagen Authors Strong Dissent
The decision by the court’s conservative majority to allow Trump to remove Slaughter drew a dissent from the three liberal justices, with Justice Elena Kagan saying her conservative colleagues had “essentially allowed the president to take charge of agencies Congress intended to protect from partisanship….(The majority) has handed full control of all those agencies to the president.”
According to the Times, Kagen further wrote, “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.”
How Merits Cases Differ
The New York Times noted that unlike merits cases, which receive full briefing and often months of consideration, emergency applications are often decided on a truncated schedule without oral argument.
Similar to the NCUA board members’ case, Slaughter was returned to her seat temporarily in a ruling by Judge Loren L. AliKhan of the U.S. District Court for the District of Columbia, with the Trump administration filing for a stay of that decision. An appeal court upheld the reinstatement before the new Supreme Court ruling.
As the CU Daily reported here, oral arguments in the lawsuit filed by fired NCUA board members Todd Harper and Tanya Otsuka are set to be heard on Nov. 21 by the D.C. Circuit Court of Appeals.
