The Supreme Court is hearing arguments regarding Trump’s power over independent agencies

The Supreme Court on Monday heard arguments in a legal case that could significantly expand the president’s powers. At stake is 90 years of precedent that has prevented presidents from firing members of independent government agencies. News Hour Supreme Court analyst Amy Howe, co-founder of SCOTUSblog, joins Amna Nawaz to discuss.

Amna Nawaz:

Welcome to the News Hour.

The Supreme Court today heard arguments in a legal case that could significantly expand the president’s powers. At stake is 90 years of precedent that has prevented presidents from firing members of independent government agencies. The case examines whether President Trump acted lawfully by firing Rebecca Slaughter, a Democratic member of the bipartisan Federal Trade Commission, saying her service was inconsistent with the priorities of the Trump administration.

Slaughter sued, arguing that commissioners could only be fired for incompetence, neglect of duty or malfeasance. Today, Trump administration lawyers argue that this gives the agencies too much power.

D. John Sawyer, Attorney General of the United States:

It continues to tempt Congress to establish a headless fourth branch at the heart of our government, isolated from political accountability and democratic oversight.

Amna Nawaz:

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

Sonia Sotomayor, Associate Justice of the US Supreme Court:

You are asking us to destroy the structure of government and deprive Congress of its ability to protect its idea that government is better organized with some independent agencies.

Amna Nawaz:

Joining me now to discuss today’s arguments is Supreme Court News Hour 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 first appointed by President Trump in 2018, reappointed by President Biden, and then fired by Trump in March. The Trump administration described the legal precedent that normally protects people like her from removal as a decaying husk. What lies behind the legal precedent that protects people like Slaughter?

Amy Howe:

So this decision dates back to 1935 and actually contains very similar facts.

Roosevelt had wanted to fire the FTC commissioner, largely with the goal of appointing his own staff to the position. The commissioner resisted. He was eventually fired, went to court and the Supreme Court upheld in that case the same removal statute that is at the heart of this case.

She said Congress enacted these takedown laws specifically because it wanted agencies like the FTC to be independent and not infringe on FDR’s executive authority because the agency does not exercise significant executive power.

Amna Nawaz:

So the Trump administration is here arguing that the president should be able to fire whoever he wants?

Amy Howe:

exactly.

It is based on something 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 it, and that as part of the 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 rebalancing power, which is taking away the power of Congress and giving it more to the president, and reshaping the government.

What about the conservative majority on the court? How did they view this issue? Are they likely to rule in favor of the Trump administration?

Amy Howe:

So they had a different set of concerns. They were concerned that, under Rebecca Slaughter’s theory, Congress could essentially remove executive departments like the Interior Department and the Agriculture Department from the executive branch and make them independent, multi-member agencies like the Federal Trade Commission, over which the president would then have limited control because of these removal restrictions.

Justice Brett Kavanaugh suggested that this would be the kind of end that could frustrate presidents’ ability to implement their policies because Congress could, for example, have a removal law like this and enact long terms for members of these agencies, so that one president could have all of the appointees on the committee at one time and the president wouldn’t be able to fire them and they could resist implementing the president’s policy initiatives.

Amna Nawaz:

As we noted, and as you may have noted, the FTC is an independent agency with five bipartisan members. If the court rules in favor of the Trump administration, will the FTC feel the impact here?

Amy Howe:

Well, that was part of the discussion today. Nearly two dozen other independent agencies have similar removal laws.

The liberal justices particularly pressed John Sawyer, the Solicitor General, Where Does Your Reasoning Go? How far will it stretch? This seems likely to apply to many of these independent agencies such as the Consumer Safety Commission, the National Labor Relations Board, and the Merit Systems Protection Board.

The real question is, how far will it go? There are also courts whose judges do not have life terms and have similar removal provisions, as well as the Federal Reserve.

Amna Nawaz:

Well, as I mentioned, they’re not separate here. Next month, the justices are scheduled to hear arguments related to President Trump’s decision to fire Federal Reserve Governor Lisa Cook. Have you heard anything today that leads you to believe that they can rule one way or the other when it comes to this issue?

Amy Howe:

Not much.

Well, of course, the Fed disagrees when it comes to the Fed’s justifiable removal clause, where the president is seeking to remove Lisa Cook, a member of the Fed’s board of governors, for cause, said Solicitor General John Sawyer.

He has made allegations of mortgage fraud and said she should be removed from the Fed for that reason. Naturally, Cook strongly doubted these claims.

Amna Nawaz:

Another great day at the Supreme Court.

Amy Howe, SCOTUSblog Co-Founder It’s always a pleasure to have you here. Thank you.

Amy Howe:

Thank you.