Supreme Court hears arguments on Trump’s power over independent agencies

Amna Nawaz:

Welcome to the "News Hour."

The Supreme Court heard arguments today in a legal case that could vastly expand presidential powers. At stake are 90 years of precedent that have kept presidents from being able to remove members of independent government agencies. The case looks at whether President Trump acted legally in firing Rebecca Slaughter, a Democratic member of the bipartisan Federal Trade Commission, saying her service was inconsistent with Trump administration priorities.

Slaughter sued, arguing that commissioners can only be fired for inefficiency, neglect of duty, or malfeasance. Today, Trump administration lawyers argued that gives agencies too much power.

D. John Sauer, U.S. Solicitor General:

It continues to tempt Congress to erect at the heart of our government a headless fourth branch, insulated from political accountability and democratic control.

Amna Nawaz:

But liberal justices warned about the impact this could have on the balance of power.

Sonia Sotomayor, U.S. Supreme Court Associate Justice:

You're asking us to destroy the structure of government and to take away from Congress its ability to protect its idea that the government is better structured with some agencies that are independent.

Amna Nawaz:

Joining me now to discuss today's arguments is the "News Hour"'s Supreme Court analyst, Amy Howe, co-founder of SCOTUSblog.

Good to see you, Amy.

Amy Howe:

Good to see you too.

Amna Nawaz:

So let's set the table here.

Rebecca Slaughter was actually first appointed by President Trump in 2018, reappointed by President Biden, fired by Trump in March. The Trump administration called the legal precedent that usually protects people like her from being removed a decaying husk. What's behind that legal precedent that's protected people like Slaughter?

Amy Howe:

So this is a decision that dates back to 1935 and in fact involves very similar facts.

FDR wanted to fire a commissioner of the Federal Trade Commission, in no small part to put his own people in the job. The commissioner resisted. He eventually was fired, went to court and the Supreme Court in that case upheld the same removal statute that is at the center of this case.

It said Congress enacted these removal statutes precisely because it wants agencies like the FTC to be independent and it isn't infringing on FDR executive power because the agency doesn't exercise substantial executive power.

Amna Nawaz:

And so the Trump administration here is arguing, what, that the president should be able to fire whomever he wants?

Amy Howe:

Exactly.

It rests on something that's sometimes known as the unitary executive theory, which is the idea that the president is in charge of the executive branch and has complete control over that and that, as part of that exercise of power, he needs to be able to remove anyone in the executive branch without being subject to these restrictions to carry out his duties.

Amna Nawaz:

So we heard from Justice Sotomayor there saying that this is about the rebalancing of power,it takes Congress's power away and gives it more to the president, reshapes the government.

What about the conservative majority on the court? How did they look at this issue? And are they likely to rule in Trump administration's favor?

Amy Howe:

So they had a different set of concerns. They were concerned that, under Rebecca Slaughter's theory, Congress could in essence take executive departments like the Department of the Interior, the Department of Agriculture out of the executive branch and make them independent multimember agencies like the FTC, over which the president would then have limited control because of these removal restrictions.

Justice Brett Kavanaugh suggested that this would be sort of an end run that could thwart presidents' ability to carry out their policies because Congress could, for example, have a removal statute like this and enact long terms for the members of these agencies, so that one president could have all of the appointees on the commission at once and the president wouldn't be able to fire them and they could resist carrying out the president's policy initiatives.

Amna Nawaz:

As we pointed out, as you have noted, the FTC is a bipartisan five-member independent agency. If the court rules in the Trump administration's favor, is the impact just going to be felt by the FTC here?

Amy Howe:

Well, that was part of the debate today. There are roughly two dozen other independent agencies that have similar removal statutes.

And the liberal justices in particular pressed John Sauer, the solicitor general, where would your logic go? How far would it extend? And it seems likely that it would apply to a lot of these independent agencies like the Consumer Safety Protection Commission and the National Labor Relations Board, the Merit Systems Protection Board.

And the question is really, how far will it go? There are also courts in which the judges don't have life tenure and have similar removal provisions, as well as the Federal Reserve Bank.

Amna Nawaz:

Well, as you mentioned, they're not unrelated here. Next month, the justices are going to hear arguments in President Trump's decision to fire Federal Reserve Governor Lisa Cook. Did you hear anything today that leads you to believe that they could rule one way or the other when it comes to that case?

Amy Howe:

Not a whole lot.

The solicitor general, John Sauer, said well, of course, the Fed is different when it comes to the Federal Reserve Board's for-cause removal provision, that the president is seeking to fire Lisa Cook, one of the Fed's Board of Governors, essentially for cause.

He has made allegations of mortgage fraud and said that she should be removed from the Fed for that reason. Cook has, of course, hotly disputed those allegations.

Amna Nawaz:

Another big day at the Supreme Court.

Amy Howe, co-founder of SCOTUSblog, always great to have you here. Thank you.

Amy Howe:

Thank you.