The Supreme Court this week will consider a case that has the potential to undercut the independence of agencies like the Federal Energy Regulatory Commission.
On Monday morning, the justices will hear oral arguments on whether President Donald Trump overstepped his authority by removing Rebecca Slaughter in March from her role at the Federal Trade Commission.
The justices’ decision in Trump v. Slaughter may sound the death knell for the high court’s longstanding precedent established in the 1935 ruling Humphrey’s Executor v. United States, which shielded heads of multimember independent agencies like FERC from being fired by the president — except for “inefficiency, neglect of duty, or malfeasance in office.”
“I think it’s fair to say that Humphrey’s Executor is on the chopping block,” said Mark Chenoweth, president of the New Civil Liberties Alliance, which has advocated for overturning the ruling.
The Trump administration has argued the Constitution gives the president power to remove agency heads who use “executive power on his behalf.”
“Removal is the President’s indispensable tool of control,” Solicitor General D. John Sauer said in an opening brief to the Supreme Court. “And when the President removes executive officers, courts cannot reinstate them and authorize them to wield executive power against the President’s will.”
Slaughter isn’t the only independent agency head to face removal. The president has also fired members of the National Labor Relations Board, Merit Systems Protection Board and Consumer Product Safety Commission.
Attorneys for Slaughter have argued the court should not disturb legal precedent that has been in place for 90 years, and any concerns about the president’s removal powers for these agencies should be addressed by the Legislature — not the courts.
Still, court watchers are skeptical that view will prevail.
“We have five justices who have more or less told us in various opinions that they think Humphrey’s is wrong,” said Ilan Wurman, a law professor at the University of Minnesota, who wrote an amicus brief advocating the demise of the 1935 ruling.
Those members of the court are Chief Justice John Roberts, along with Justices Samuel Alito, Brett Kavanaugh, Neil Gorsuch and Clarence Thomas. Justice Amy Coney Barrett, the sixth member of the court’s conservative wing, remains more of an unknown, Wurman said.
“I suspect it will be narrowed [and] basically limited to the facts of the case,” said Brent Skorup, a legal fellow at the Cato Institute, said of his expectations of the ruling in the Slaughter case. He noted that only Thomas and Gorsuch seemed to be “really itching” to use the case to overturn precedent.
“I don’t think it’s clear they’ll overrule Humphrey’s Executor,” he said.
Agency carve-outs
Legal experts are watching closely to see if the court is willing to preserve independence for certain multimember agencies like FERC — if the justices are leaning toward nixing Humphrey’s Executor.
“I’ll be interested in any discussion about possible exceptions to the general rule put forward by the president that he may fire any commissioner at any multimember agency for any reason,” said Ari Peskoe, director of the Electricity Law Initiative at Harvard University, of Monday’s oral arguments.
The Trump administration has argued the only exception to the president’s removal powers would be for the Federal Reserve. But Peskoe filed a brief last month on behalf of a bipartisan group of former FERC commissioners who argued the high court should also treat ratemaking agencies like FERC differently.
A ruling from the court that limits the independence of these agencies is “fraught with risk for the American economy,” they said.
Such a decision could allow the president to get rid of the staggered appointment of commissioners that ensure appointees from the prior administration serve with those tapped by the current president.
Allowing the president to take control over ratemaking for interstate energy delivery could hurt FERC’s perception, and that in turn could make it more risky to finance projects like pipelines and power lines, the former commissioners said in their brief.
“Overturning Humphrey’s Executor would bulldoze the structural supports that Congress built into ratemaking commissions to protect its price-setting power from abuse,” they wrote.
It’s possible the justices may find a way to set an exception for ratemaking agencies like FERC, said Wurman of the University of Minnesota.
“Ratemaking was historically understood to be a kind of legislative power, but it was accomplished through the formulation of an order. And orders are adjudicatory,” Wurman said.
If the Supreme Court finds adjudicatory agencies are different and creates an exception, “ratemaking might fall within that,” he said.
He also noted that even without a carve-out for agencies like FERC, those bodies would still retain much of their independence because they must maintain bipartisan membership. Even if Trump were to remove a Democratic commissioner, he would have to appoint a Democratic replacement.
Others were skeptical that any agency besides the Federal Reserve might get special consideration from the Supreme Court.
“All these agencies do important work. I don’t see why FERC is more important than the FTC, or the [Securities and Exchange Commission] or the NLRB,” said Skorup of the Cato Institute. “I don’t think economic significance will weigh very strongly on the court. I think they’ll take a more formalistic view.”
Upending precedent
Critics of Humphrey’s Executor say the decision is no longer relevant as independent agencies have gained more executive, legislative and judicial power.
The Supreme Court found in its 1935 decision that the FTC should not be treated like traditional executive agencies because of its quasi-judicial and quasi-legislative functions.
“I think as more power has been pushed into these agencies, folks have said, ‘Now wait a minute, do we really want all this power to be unaccountable to the president?'” said Chenoweth of the New Civil Liberties Alliance. The nonprofit public interest law firm filed a “friend of the court” brief defending Trump’s position in the Slaughter case.
“If they are unaccountable to the president, then who are they accountable to? Because it’s not Congress. Congress can’t fire them. It’s not the American people. They’re not elected,” Chenoweth said. “So we just have all this power out there that is not accountable to anyone? That doesn’t seem like a great idea.”
The question came to a head at the start of Trump’s second term, as he sought to remove Slaughter and other heads of independent agencies.
The U.S. District Court for the District of Columbia blocked Slaughter’s firing, and the U.S. Court of Appeals for the District of Columbia Circuit later declined to stay the order from Judge Loren AliKhan, a Biden pick to the D.C. District Court.
The Trump administration then took the case to the Supreme Court’s emergency docket, asking the justices to temporarily block AliKhan’s order. The court agreed in September, and then the justices took the unusual step of taking up the question of whether Slaughter could be fired — before the D.C. Circuit could rule on the matter.
Other legal experts echoed Slaughter’s concerns that scrapping Humphrey’s Executor would be hugely disruptive to lower courts that have relied on the decision in their rulings.
If the Supreme Court rules to overturn the precedent, it could undermine the judiciary’s legitimacy, and call into question decades of decisions based on the existence of independent “adjudicative bodies,” 13 retired federal judges appointed by both Democratic and Republican presidents said in a recent brief.
“The proper remedy for any perceived imbalance between executive authority and statutory limits should be legislative amendment,” the federal judges told the Supreme Court.
They also defended the power of the lower courts to block removal orders from the president.
“If courts cannot order relief against constitutional or statutory violations by the executive branch simply because it is headed by the President,” they wrote, “that will have implications for courts well beyond cases where a federal official is removed from office without statutory authorization.”
Reporter Francisco “A.J.” Camacho contributed.
