The Supreme Court gave President Trump the green light Monday to remove a Democratic member of the Federal Trade Commission while litigation over her dismissal plays out.
Chief Justice John Roberts temporarily stayed a lower court order that had permitted Rebecca Slaughter to remain with the independent agency after Trump initially ordered her ouster March 18.
Roberts gave Slaughter’s legal team until Sept. 15 to respond to the emergency petition from Trump’s legal team arguing that he has the authority to remove her.
In addition to Slaughter, Trump’s March announcement removed Alvaro Bedoya, the two Democrats on the five-person board governing the FTC. Bedoya initially challenged his firing but has since dropped that suit.
Last week, a split appeals panel on the DC Circuit concluded that Trump fired Slaughter “without cause” and flouted the 1914 statute that established the FTC, which oversees antitrust and consumer protection laws.
The Federal Trade Commission Act stipulates that commissioners can only be ousted for “inefficiency, neglect of duty, or malfeasance in office.”
In 1935, the Supreme Court was asked to weigh in on the limits of the president’s ability to fire FTC commissioners in Humphrey’s Executor v. United States.
In a unanimous ruling, the justices found that presidents could not dismiss FTC commissioners over policy differences alone.
Roberts did not elaborate on his rationale for siding with Trump in Monday’s ruling and there were no noted dissents.
Trump’s legal team has argued that the Humphrey’s Executor precedent infringes upon presidential powers laid out in Article II of the Constitution.
The high court has previously expressed skepticism about independent federal agencies that Congress intended to put under limited presidential control.
For example, in July, the Supreme Court paved the way for Trump to fire three members of the Consumer Product Safety Commission.
The FTC has five Senate-confirmed commissioners who serve seven-year terms. Under its founding statute, no more than three commissioners can be members of the same political party.
