Justice Elena Kagan slammed the Supreme Court’s conservative majority Monday for handing “full control” of independent agencies to President Donald Trump by allowing him to fire anyone he wants “for any reason or no reason at all.”
The Supreme Court issued a 6–3 ruling along ideological lines approving Trump’s emergency request to remove Rebecca Slaughter, a Democratic commissioner on the Federal Trade Commission. The court also announced that it would hear arguments for the case in December.
In a brief, scathing dissent, Kagan accused her conservative colleagues of allowing Trump to discharge a member of the FTC “without any cause,” just as they had let him do with the other independent agencies made up of bipartisan members: the National Labor Relations Board, the Merit Systems Protection Board, and the Consumer Product Safety Commission.
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 wrote.
Kagan cited the 1935 case Humphrey’s Executor v. United States, in which the court rejected Franklin Delano Roosevelt’s attempt to fire a conservative commissioner appointed by President Herbert Hoover overseeing his New Deal policies. “Congress, we held, may restrict the President’s power to remove members of the FTC, as well as other agencies performing ‘quasi-legislative or quasi-judicial’ functions, without violating the Constitution,” Kagan wrote, noting that that siding with the court here would be a reversal of that ruling.
“Our emergency docket should never be used, as it has been this year, to permit what our own precedent bars. Still more, it should not be used, as it also has been, to transfer government authority from Congress to the President, and thus to reshape the Nation’s separation of powers,” Kagan wrote.
Trump attempted to fire Slaughter in March, leading the commissioner to challenge the move, as presidents may only legally remove FTC commissioners for “inefficiency, neglect of duty, or malfeasance in office.”
In July, a federal court blocked Trump’s “unlawful” attempt to remove Slaughter, citing Humphrey’s Executor. That decision was then upheld by the U.S. Circuit Court of Appeals for the District of Columbia, which last week stated that Trump “has no likelihood of success on appeal given controlling and directly on point Supreme Court precedent.”
The Supreme Court previously allowed Trump to oust Gwynne Wilcox at the National Labor Relations Board and Cathy Harris at the Merit Systems Protection Board—whose terms weren’t due to expire until 2029—as well as three Democratic appointees on the Consumer Product Safety Commission.
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