Chief Justice Roberts Lets Trump Keep Fired Commissioner off FTC

Today, Chief Justice John Roberts temporarily blocked a lower court’s ruling that ordered President Donald Trump to reinstate fired commissioner Rebecca Kelly Slaughter to the Federal Trade Commission (FTC).

In March, the White House sent Slaughter, a President Joe Biden appointee, a letter stating that she had been removed from the commission because her “continued service on the FTC is inconsistent with my Administration’s priorities.”

However, the Federal Trade Commission Act states that a president can only remove a commissioner for “inefficiency, neglect of duty, or malfeasance in office.” In 1935, in Humphrey’s Executor v. United States, the Supreme Court ruled that “illimitable power of removal is not possessed by the President,” and affirmed that a commissioner can only be removed for cause.

Slaughter filed suit and U.S. District Court Judge Loren AliKhan ordered Trump to reinstate her. Trump then went to the U.S. Court of Appeals for the District of Columbia to ask that AliKhan’s order be stayed, or temporarily blocked, while the case was litigated. In a two to one decision, the U.S. Court of Appeals denied Trump’s request.

“Over the ensuing decades — and fully informed of the substantial executive power exercised by the Commission — the Supreme Court has repeatedly and expressly left Humphrey’s Executor in place, and so precluded Presidents from removing Commissioners at will,” the court ruled. “To grant a stay would be to defy the Supreme Court’s decisions that bind our judgments. That we will not do.”

Last week, Trump took his case to the Supreme Court. Today, Roberts paused the D.C. court’s order, “pending further order of The Chief Justice or of the Court.”

The FTC is tasked with “protecting the public from deceptive or unfair business practices and from unfair methods of competition through law enforcement, advocacy, research, and education,” the agency’s website states. However, under Trump, the commission has become an extension of the president’s agenda.

After taking office, Trump appointed Andrew N. Ferguson, who had clerked for Supreme Court Justice Clarence Thomas, as chair of the commission. Ferguson replaced Biden appointee Lina Khan who, as chair, had gone after large corporations like Amazon, Uber, and GrubHub for exploitative business practices that harmed consumers and workers.

In July, the FTC announced that it was launching a public inquiry to “better understand how consumers may have been exposed to false or unsupported claims about ‘gender-affirming care,’ especially as it relates to minors, and to gauge the harms consumers may be experiencing.” The Trump administration has repeatedly attacked trans people in an effort to eliminate them from public life.

Trump’s firing of Slaughter is part of his larger effort to ensure federal agencies are beholden to him. Shortly after taking office, he illegally fired the chair of the National Labor Relations Board. Relying on the Humphrey’s Executor decision, the U.S. District Court ordered Trump to reinstate the chair.

“An American President is not a king — not even an ‘elected’ one — and his power to remove federal officers and honest civil servants like [the] plaintiff is not absolute, but may be constrained in appropriate circumstances, as are present here,” U.S. District Judge Beryl A. Howell wrote.

The U.S. Supreme Court, at Trump’s request, agreed to stay, or pause, Howell’s ruling while the case is litigated.

In February, Trump issued an executive order entitled “Ensuring Accountability for all Agencies,” which states that “it shall be the policy of the executive branch to ensure Presidential supervision and control of the entire executive branch.”

“[P]revious administrations have allowed so-called ‘independent regulatory agencies’ to operate with minimal Presidential supervision,” Trump wrote. “These practices undermine such regulatory agencies’ accountability to the American people and prevent a unified and coherent execution of Federal law.”

He continued: “For the Federal Government to be truly accountable to the American people, officials who wield vast executive power must be supervised and controlled by the people’s elected President.”

David M. Driesen, university professor at Syracuse University College of Law, previously told Truthout that the president’s attempts to take over federal agencies are right out of the autocrat’s playbook.

“Elected autocrats who have attacked and often destroyed democracies do away with independent agencies and purge the government of neutral civil servants in favor of loyalists,” he said. “That is what Trump is doing.”