The Supreme Court’s conservatives appear ready to override Congress and give President Trump more power to fire officials from independent agencies and commissions.
On Monday, the justices heard arguments over whether Trump can fire Rebecca Slaughter, one of two Democratic appointees to the five-member Federal Trade Commission.
The case sparked a conflict between Congress’ power to form a government and the president’s “executive power.”
Trump’s ruling heralds a historic shift in the federal government — away from bipartisan experts and toward more partisan control by the president.
D. John Sauer, Trump’s deputy attorney general, said the court should overturn the 1935 ruling in favor of independent agencies. He told the court the decision “was seriously wrong when it was made. It must be overturned”.
The court’s three liberals strongly opposed what they called “radical changes” in the U.S. government.
If the president can fire the leaders of independent agencies at will, long-standing civil service laws could also be scrapped, they say.
Justice Elena Kagan said it would put “tremendous, uncontrolled and unchecked power in the hands of the president.”
But six conservatives said they were concerned the agencies were exercising “executive powers” that belong to the president.
It is unclear, however, whether the court will rule broadly to cover all independent agencies or focus narrowly on the FTC and other similar commissions.
For much of U.S. history, Congress created independent commissions and commissions to carry out specific tasks, each headed by a committee of experts with a fixed term.
But the court’s current conservative majority holds that these boards and commissions are unconstitutional if the new president cannot fire their officials at will.
Successive presidents have signed these measures into law, and the Supreme Court unanimously upheld them 90 years ago in Humphrey Executive v. United States.
In creating such agencies, Congress often responded to new-age problems.
The Interstate Commerce Commission was established in 1887 to regulate railroad rates. Court Case Focus The Federal Trade Commission was established in 1914 to investigate corporate monopolistic practices. The previous year, the Federal Reserve was created to supervise banks, prevent panics, and regulate the money supply.
During the Great Depression of the 1930s, Congress established the Securities and Exchange Commission to regulate the stock market and the National Labor Relations Board to resolve labor disputes.
Decades later, Congress began to focus on security issues. The National Transportation Safety Board was created to investigate aviation accidents, and the Consumer Product Safety Commission was created to investigate products that may pose hazards. The Nuclear Regulatory Commission protects the public from nuclear hazards.
Typically, Congress gives Republican and Democratic appointees fixed terms and says they can be removed only for “inefficiency, dereliction of duty, or malfeasance.”
Slaughter was first appointed to the Democratic seat by Trump and reappointed by President Biden in 2023 to a seven-year term.
But conservatives have long derided the agencies and commissions as an out-of-control “administrative state,” and Chief Justice John G. Roberts Jr. said he believed their independence from direct presidential control was unconstitutional.
“The President has the power to remove – and thereby supervise – those who exercise executive power on his behalf,” he wrote in the text of the Constitution last year. For the first time, the constitutional text declares that the president is immune from prosecution for crimes committed while in office.
In a 6-3 majority, Roberts proposed an extremely broad view of presidential powers while limiting the power of Congress.
Read more: Supreme Court temporarily upholds Trump’s decision to fire two independent agency officials
Article I of the Constitution states that Congress “shall have power… to make all laws necessary and proper for their execution… All other powers shall be vested in” the government of the United States. Article 2 states: “The executive power shall belong to the President of the United States.”
Most courts currently hold that the president’s executive power trumps Congress’s power to set limits by law.
“Congress lacks the authority to control the president’s ‘unfettered power of removal’ of U.S. executive officials,” Roberts wrote last year in “Trump v. United States.”
Four months later, Trump won re-election and moved quickly to fire a series of Democratic appointees who had served fixed terms set by Congress. Slaughter and several other fired appointees sued, citing the law and her fixed term. They prevailed before a federal district judge and the U.S. Court of Appeals.
But Trump’s lawyers filed an emergency appeal with the Supreme Court, and the justices voted 6-3 in favor of the president and against the fired officials.
In September, the court said it would hear arguments in Trump v. Slaughter to decide whether to overturn Executive Humphrey’s decision.
At the time, conservatives applauded the move. “Humphrey’s enforcers have long allowed unaccountable agencies like the FTC to exercise executive power without effective oversight,” said Cory Andrews, general counsel at the Washington Legal Foundation.
In defending the 1935 ruling, law professors noted that the court said at the time that these independent commissions were not purely executive agencies but also had legislative and judicial responsibilities, such as passing regulations or resolving labor disputes.
But Roberts and conservatives are not swayed by these arguments.
However, they are unsure what to do with the Fed, whose independence the business community values. The chamber said the court should overturn the 1935 decision but carve out an exception for the Fed.
Trump’s lawyers reluctantly agreed. If “an exception exists to preclude authority,” he wrote in his brief in the Slaughter case, it should be an “agency-specific exception” limited to the Fed.
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This story originally appeared in the Los Angeles Times.