A majority of the Supreme Court on Monday appeared ready to limit the independence of agencies like the Federal Energy Regulatory Commission — even as the court’s liberal wing issued a forceful warning against the risks of increasing presidential power.
During oral arguments in Trump v. Slaughter, the justices weighed whether the president has the authority to fire heads of multimember agencies who have been shielded for nearly a century under the 1935 ruling Humphrey’s Executor v. United States that only allowed “for cause” removals.
The case the court heard Monday centers on President Donald Trump’s decision earlier this year to remove Rebecca Slaughter from her position on the Federal Trade Commission, but the court’s ruling is expected to implicate other similarly structured agencies like FERC and the Nuclear Regulatory Commission.
Justice Ketanji Brown Jackson suggested during the argument that striking down “for cause” removal protections at independent agencies would cause significant risks to their missions.
It could “open the door for each new president to come in and clean house, notwithstanding [agency heads’] knowledge or expertise,” she said. “And presumably the president could come in and install who he wanted, and that comes with risks.”
The nations’ founders wanted powers separated across the federal government, said Justice Elena Kagan.
Independent agencies also do a lot of rulemaking and judging, she added, but if the president has the power to intervene, “it’s going to put a lot of the legislating and adjudicatory power in the hands of the president.”
“Formal arguments shouldn’t blind us to the real-world realities of what our decisions do,” Kagan said. “If you put these agencies under complete presidential control, what you are left with is a president with control over everything, including over much of the lawmaking in this country.”
The Trump administration maintained that the president should have authority to remove agency heads who are exercising executive power. The Supreme Court had distinguished FTC in Humphrey’s Executor because of its quasi-judicial and quasi-legislative functions.
Humphrey’s Executor “must be overruled,” said Solicitor General D. John Sauer at the start of Monday’s oral arguments.
If the president can fire the heads of independent agencies, “the sky will not fall,” Sauer said. “In fact,” he added, “our entire government will move toward accountability to the people.”
Sauer’s arguments seemed to find purchase with the court’s conservative majority, even as the justices raised their own questions about the limits of the ruling’s implications, including on federal tribunals that handle tax disputes or military appeals.
Chief Justice John Roberts noted that it can be hard to parse when an agency is engaging in a legislative or executive function.
“What are we supposed to do with that?” he asked Sauer.
“Say it’s 85 percent judicial, and a smaller percentage is some executive function,” Roberts continued, “is there a principle to sever the tail on the dog and sever out the executive function?”
Justice Brett Kavanaugh noted that broad delegations of power to independent agencies “raise enormous constitutional and real-world issues.”
The court has used the major questions doctrine “to make sure that we are not being casual about assuming that Congress has delegated major questions of political or economic significance to independent agencies — or to any agencies for that matter,” he said.
But Kavanaugh also expressed concern that the Trump administration’s reasoning could undermine the independence of the Federal Reserve.
Sauer said that the administration was not seeking to undercut the Federal Reserve’s unique independence.
Amitabh Agarwal, special counsel at the Protect Democracy project, who argued on behalf of Slaughter, said ruling in favor of the Trump administration would reverse a long history of the Supreme Court protecting independent agencies.
“Stare decisis militates against overruling a century of precedent at this late date,” he said, citing the principle that courts follow earlier rulings when deciding similar cases.
“The political branches are more than up to the task of finding reasonable legislative solutions that strike the right balance,” Agarwal said.
“That kind of legislative solution,” Agarwal continued,” is far preferable than abandoning a foundational precedent on which much of modern governance is based.”
But Justice Samuel Alito said it was also important to interrogate what Agarwal’s argument means for Cabinet officers at agencies like Interior, EPA and Agriculture who could be replaced by multimember commissions.
“I don’t think you can make the argument that the logic of [Sauer’s] argument is going to cause these revolutionary results without being prepared to explain more concretely than you have, the limits of your own argument,” Alito said.
Some critics of Humphrey’s Executor said they were optimistic the court would rule their way following Monday’s hearing.
Ilan Wurman, a law professor at the University of Minnesota who wrote an amicus brief calling for the court to undo Humphrey’s Executor, said there were “almost certainly” six votes to overturn the 1935 precedent.
The question will be where the court derives the removal power, “and whether that will allow them to carve out exceptions for inferior officers, adjudicative officers, or the Fed,” he said in an email.
Brent Skorup, a legal fellow at the Cato Institute, which also wrote an amicus brief in support of the Trump administration, said in a statement it appeared during oral arguments that most of the justices on the court were concerned about the rise of independent agencies and their lack of accountability,
“We are hopeful the court will hold that the Constitution forbids such removal restrictions and will overrule Humphrey’s Executor,” Skorup said. “That would restore a measure of accountability and strengthen individual liberty.”
Environmental groups said that such a ruling would jeopardize the public.
“While the Trump administration continues to recklessly grab power from the people, extreme MAGA justices on the Supreme Court appear poised to hand over even more power to the MAGA president at the cost of our freedoms and protections,” said Doug Lindner, senior director of judiciary and democracy at the League of Conservation Voters.
“Giving Trump the green light to fire leaders of independent agencies in defiance of law passed by Congress is anti-constitutional and overturns nearly a hundred years of the Supreme Court’s own precedent,” Lindner continued. “It would endanger our health, safety, freedoms, and protections from corporate abuses at a time when corporate money and power are rising in our politics due to rulings by these same MAGA justices.”
