WASHINGTON — Taking up a major case on the structure of the federal government, the Supreme Court on Monday agreed to consider whether President Donald Trump can fire a member of the Federal Trade Commission despite a law that limits his ability to do so.
While the court is deciding the case, a lower court ruling in favor of the commissioner in question, Rebecca Kelly Slaughter, will remain on hold, the court said. That means she will not remain in office while the case is litigated.
In weighing the case, the conservative-majority court will decide whether a key 1935 Supreme Court ruling called Humphrey’s Executor v. United States, which upheld restrictions on the president’s power to fire FTC members, should be overturned.
The ruling would apply not just to the FTC but also other federal agencies with similar restrictions.
Chief Justice John Roberts had issued a temporary stay on Sept. 8 that allowed Trump to remove Slaughter from office.
Three liberal justices dissented from the court’s decision to allow Slaughter’s firing while litigation continues.
Justice Elena Kagan wrote that the 1935 ruling remains on the books until such time as the court overturns it. But in the meantime, the court has summarily “handed full control of all those agencies to the president,” she wrote.
Complaining about the court’s growing number of decisions that grant emergency requests filed by the Trump administration, Kagan said that the process had been used “to transfer government authority from Congress to the president, and thus to re-shape the nation’s separation of powers.”
The court’s actions would suggest the conservative majority is sympathetic to the Trump administration’s arguments that the legal provisions restricting the president’s ability to remove FTC members without cause unlawfully limit his powers under Article 2 of the Constitution.
A second legal question concerns whether Slaughter even has a legal avenue to remain in office if she ultimately wins on her argument that the firing was illegal.
The court said oral arguments will be held in December.
Trump fired both Democratic commissioners on the five-member FTC, Slaughter and Alvaro Bedoya, in March. Both challenged the move, although Bedoya later dropped out of the case.
A federal judge in July ruled in favor of Slaughter, citing the 1935 Supreme Court precedent. The U.S. Court of Appeals for the District of Columbia Circuit reached a similar conclusion.
This year, Trump has also sought to remove members of other independent federal agencies, which the Supreme Court has allowed.
The Supreme Court, whose majority has been skeptical of the concept of independent federal agencies that are not subject to presidential control, has undermined such protections in recent years in a series of cases involving other agencies.
Trump has sought to dramatically re-shape the federal government using an aggressive form of executive power.
In addition to seeking to control hitherto independent agencies, he has also sought to dismantle some agencies and has fired thousands of federal workers.
In another high-stakes showdown, he is trying to assert control over the Federal Reserve, which has traditionally acted independently.
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