The Trump administration asked the Supreme Court on Thursday to allow it to fire Democrat-appointed Federal Trade Commissioner Rebecca Slaughter, while also requesting that the high court hear the full case immediately rather than allow it to move through lower courts.
Solicitor General D. John Sauer asked the justices to halt a Tuesday ruling from the U.S. Court of Appeals for the D.C. Circuit allowing the reinstatement of Slaughter pending appeal, pointing to two previous Supreme Court rulings on the emergency docket allowing the firing of independent agency heads in recent months.
“In this case, the lower courts have once again ordered the reinstatement of a high-level officer wielding substantial executive authority whom the President has determined should not exercise any executive power, let alone significant rulemaking and enforcement powers,” Sauer wrote.
“On multiple prior occasions—with respect to the National Labor Relations Board (NLRB), Merit Systems Protection Board (MSPB), and Consumer Products Safety Commission (CPSC)—this Court has granted emergency stays of lower-court injunctions attempting to reinstate such senior executive officials,” Sauer added.
The solicitor general also asked the high court to view the request on the emergency docket as a petition for the Supreme Court to hear the full arguments of the case before it has made its way fully through the lower courts. The rarely granted application is called a “petition for a writ of certiorari before judgment.”
Sauer presents two questions for the high court to consider reviewing before judgement, including if the law establishing the FTC “violates the separation of powers by prohibiting the President from removing a member of the Federal Trade Commission except for ‘inefficiency, neglect of duty, or malfeasance in office’” and if the “district court’s order restoring respondent to office exceeded the court’s remedial authority.”
The earlier two emergency docket petitions regarding the firings of other Democrat-appointed independent agency heads include similar requests. No justices said they would have granted cert before judgment in the first order in May, but Justice Brett Kavanaugh said he would have granted cert before judgment in the second order in July.
“This Court did not grant similar requests in Wilcox and Boyle, but recent developments have strengthened the case for the Court’s intervention. As this case illustrates, lower courts have continued to reinstate removed executive officers despite the Court’s decisions in Wilcox and Boyle,” Sauer wrote. “They have made clear that, regardless of recent developments on this Court’s emergency docket, they will adhere to their expansive and incorrect interpretation of Humphrey’s Executor.”
The Supreme Court’s long-standing precedent on the firing of independent agency heads, which stems from its 1935 ruling in Humphrey’s Executor v. United States, found that then-President Franklin Roosevelt could not fire an FTC commissioner at his discretion and could only fire him “for cause,” as outlined in the law passed by Congress authorizing the creation of the FTC.
In its Tuesday ruling, the majority on the three-judge D.C. Circuit panel said they would not “do the Supreme Court’s job of reconsidering [the] precedent” of Humphrey’s Executor despite the high court’s recent orders on its emergency docket. The Trump administration’s request Thursday could give the Supreme Court a chance to revisit that precedent.
APPEALS COURT’S FTC REINSTATEMENT SETS UP LIKELY SUPREME COURT CLASH OVER HUMPHREY’S EXECUTOR
Four of the nine justices must vote to grant certiorari for the high court to accept a petition to hear full arguments.
The petition from the Trump administration regarding the FTC member comes less than a day after the administration asked the Supreme Court to hear its appeal over a federal appeals court ruling that President Donald Trump’s “Liberation Day” tariffs were unlawful.