
Ousted Federal
Trade Commissioner Rebecca Kelly Slaughter is asking the Supreme Court to rule that President Donald Trump lacked authority to fire her.
In papers filed late last week,
Slaughter urged the court to follow a precedent established in 1935, when it ruled in a case called Humphrey's Executor that President Franklin D. Roosevelt could only remove an FTC commissioner for
the three reasons set out by Congress -- inefficiency, neglect of duty, or malfeasance in office.
"Overruling a century of precedent at this late date ... would profoundly
destabilize institutions that are now inextricably intertwined with the fabric of American governance," Slaughter's attorneys write.
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The argument comes in a battle that began
in March, when Trump ousted Slaughter and Commissioner Alvaro Bedoya, both Democrats, from the five-member commission. At the time, Trump told them: "Your continued service on the FTC is inconsistent
with my Administration’s priorities."
Slaughter sued for reinstatement and the lower courts sided with her, basing their decisions on the 90-year-old Humphrey's Executor
ruling.
Trump appealed to the Supreme Court, which halted the lower court orders on an emergency basis, halting
Slaughter's return to the agency.
Last month, the administration officially the court to overrule Humphrey's Executor, arguing that the decision was "egregiously wrong from the
start,” quoting the phrase used by Justice Samuel Alito when the court overturned Roe v. Wade -- the 1973 decision establishing the constitutional right to abortion.
"Humphrey’s Executor grievously erred in holding that the President could not remove FTC Commissioners at will," U.S. Solicitor General John Sauer argued in the administration's
written brief.
He called the 1935 case "poorly reasoned," and contended
that the holding conflicts with Article II of the Constitution, which sets out the president's powers.
"Removal is the President’s indispensable tool of control," Sauer
argued. "When the President removes executive officers, courts cannot reinstate them and authorize them to wield executive power against the President’s will."
He added
that after the court handed down the Humphrey's Executor ruling, courts created more independent agencies that wield "executive power" by regulating "innumerable aspects of modern life, including
lending terms, union recognition, nuclear waste, furniture anchoring, telemarketing calls, and employment disputes -- among many others."
Restrictions on ousting agency members
prevent the president "from superintending agency heads who wield those powers," Sauer argued.
Slaughter's attorneys are asking the court to reject that position, arguing that
Congress has long had the power to not only create multimember agencies, but also restrict the president from firing members at will. For instance, they argue, in 1887, when Congress established the
now defunct Interstate Commerce Commission, lawmakers said members of that agency could only be removed for inefficiency, neglect of duty, or malfeasance in office.
Counsel for
Slaughter adds that multimember agencies like the FTC -- established as a bipartisan commission -- "limit arbitrary decision-making by avoiding extreme concentrations of power and requiring both
collective deliberation and individualized judgment."
The Supreme Court is expected to hear oral arguments on December 8.