Supreme Court lets Trump fire FTC Democrat despite 90-year-old precedent

Kagan wrote:

[T]he Court today issues a stay enabling the President to immediately discharge, without any cause, a member of the Federal Trade Commission (FTC). That stay, granted on our emergency docket, is just the latest in a series. Earlier this year, the same majority, by the same mechanism, permitted the President to fire without cause members of the National Labor Relations Board, the Merits Systems Protection Board, and the Consumer Product Safety Commission. Congress, as everyone agrees, prohibited each of those presidential removals. See, e.g., 15 U. S. C. § 41 (barring the President from discharging FTC Commissioners except for “inefficiency, neglect of duty, or malfeasance in office”). Under the relevant statutes, the entities just listed are “classic independent agenc[ies]”—”‘multi-member, bipartisan commission[s]’ whose members serve staggered terms and cannot be removed except for good reason.” Yet the majority, stay order by stay order, has handed full control of all those agencies to the President. He may now remove—so says the majority, though Congress said differently—any member he wishes, for any reason or no reason at all. And he may thereby extinguish the agencies’ bipartisanship and independence.

In Humphrey’s Executor, the Supreme Court unanimously “rejected a claim of presidential prerogative identical to the one made in this case,” involving the same agency, Kagan wrote. While the majority may end up reversing Humphrey’s Executor, the case is still the controlling precedent, Kagan said.

Letting the president fire an FTC commissioner without cause “requires reversing the rule stated in Humphrey’s: It entails overriding rather than accepting Congress’s judgment about agency design,” Kagan wrote. “The majority may be raring to take that action, as its grant of certiorari before judgment suggests. But until the deed is done, Humphrey’s controls, and prevents the majority from giving the President the unlimited removal power Congress denied him. Because the majority’s stay does just that, I respectfully dissent.”

The FTC is currently composed of three Republicans. Normally, the controlling party would have a 3-2 majority instead of 3-0. Trump fired both Slaughter and Democrat Alvaro Bedoya, but Bedoya later resigned formally, so the court case is centered on Slaughter’s claim only.