The Supreme Court on Monday allowed President Donald Trump to remove Rebecca Slaughter as a member of the Federal Trade Commission, for now.
Slaughter’s ouster will take effect while the justices consider whether to overturn decades-old court precedent that protects federal agency members from being fired by the president without sufficient cause.
The court’s three liberal justices dissented.
Slaughter, who was appointed to a Democratic seat on the FTC during Trump’s first term and renominated by former President Joe Biden, sued after Trump fired her from the commission in March.
Two lower federal courts rejected Trump’s bid to allow Slaughter’s firing while her lawsuit played out. The appeals court in D.C. found that to grant that request would violate the precedent set by the 1935 Supreme Court ruling known as Humphrey’s Executor, which specifically barred presidents from removing FTC commissioners at will.
But in a 6-3 decision Monday, the Supreme Court granted Trump’s request to temporarily block the rulings from judges who had ordered her reinstatement.
At the same time, the high court agreed to take up the case, and set a briefing schedule that would lead to oral arguments in December, Chief Justice John Roberts said in the ruling.
The justices will consider whether the precedent set in Humphrey’s “should be overruled,” and “whether a federal court may prevent a person’s removal from public office.”
Judge Elena Kagan wrote in her dissent that entities similar to the FTC are independent agencies “whose members serve staggered terms and cannot be removed except for good reason.”
“Yet the majority, stay order by stay order, has handed full control of all those agencies to the President,” wrote Kagan, whose dissent was joined by Justices Sonia Sotomayor and Ketanji Brown Jackson.
Trump “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.”
Kagan said the court’s conservative majority — which includes three justices whom Trump appointed — may be “raring” to overturn Humphrey’s.
“But until the deed is done, Humphrey’s controls, and prevents the majority from giving the President the unlimited removal power Congress denied him,” she wrote.
“Because the majority’s stay does just that, I respectfully dissent. Our emergency docket should never be used, as it has been this year, to permit what our own precedent bars.”
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