Supreme Court Allows Trump to Fire FTC Member for Time Being

The high court’s new ruling temporarily pauses a lower court order reinstating Federal Trade Commission member Rebecca Slaughter.

Federal Trade Commission member Rebecca Slaughter testifies on the oversight of the Federal Trade Commission before the U.S. Senate Consumer Protection, Product Safety, Insurance, and Data Security Subcommittee in the Russell Senate Office Building in Washington on Nov. 27, 2018. Reuters/Leah Millis/File photo

The Supreme Court on Sept. 8 temporarily allowed President Donald Trump to fire Federal Trade Commission (FTC) member Rebecca Slaughter after a federal appeals court reinstated her last week.

Slaughter, formerly chief counsel to Sen. Chuck Schumer (D-N.Y.), was first appointed by Trump in 2018 to a seat reserved for Democrats on the FTC and was then reappointed in 2023 by President Joe Biden.

Chief Justice John Roberts issued an administrative stay pausing a July 17 ruling by U.S. District Judge Loren L. AliKhan, who ruled that Slaughter’s termination was illegal.

An administrative stay gives the justices extra time to fully consider the case.

After AliKhan ruled on Sept. 2, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit voted 2–1 to affirm the judge’s ruling allowing Slaughter to remain in her post.

Roberts said AliKhan’s order is “stayed pending further order of the undersigned or of the Court.” He directed Slaughter to file a response with the court by 4 p.m. on Sept. 15.

Trump fired Slaughter earlier this year. In a letter explaining the decision, the White House said keeping her in place would be inconsistent with the Trump administration’s priorities.

The president’s attempt to fire the FTC member is the latest development in his ongoing effort to remove personnel from independent federal agencies whose appointees traditionally have been shielded from termination without cause.

Some lower courts that have rejected Trump’s efforts to fire members of independent federal agencies have cited a 1935 Supreme Court precedent known as Humphrey’s Executor v. United States in their written decisions. That precedent upheld legal limitations that Congress imposed on removing members of the FTC, an independent federal agency.

AliKhan had ruled that Slaughter’s termination was unlawful because it was barred by the Humphrey’s Executor ruling.

The judge said at the time that the Trump administration had asked the court to ignore Humphrey’s Executor and “bless what amounts to the implied overruling of a ninety-year-old, unanimous, binding precedent.”

“Because ‘it is [the Supreme] Court’s prerogative alone to overrule one of its precedents,’ the court cannot, and will not, fulfill that request,” she said.

In the D.C. Circuit Court’s ruling, Judge Neomi Rao dissented, saying the FTC “exercises significant executive power,” and that other factors also favor the government in the case.

In “two virtually identical cases,” the Supreme Court has put similar injunctions on hold, she said.

Rao was referring to Trump v. Boyle and Trump v. Wilcox. In Boyle, the Supreme Court upheld Trump’s firing of three Biden appointees at the Consumer Product Safety Commission. In Wilcox, the high court upheld Trump’s firing of Biden appointees at the Merit Systems Protection Board and the National Labor Relations Board.

In Wilcox, the Supreme Court ruled for the Trump administration, saying the government “faces greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty,” she said.

The Supreme Court ruled in Seila Law v. Consumer Financial Protection Bureau (2020) that Humphrey’s Executor was based on the FTC as it stood in 1935, when it functioned solely as “a legislative or judicial aid” that exercised “no part of the executive power,” Solicitor General D. John Sauer said in the emergency application that was filed on Sept. 4.

“The modern FTC has amassed considerable executive power” since Humphrey’s Executor, and its power now “equals or exceeds” that of the National Labor Relations Board, Merit Systems Protection Board, and Consumer Product Safety Commission.

The lower courts erred by viewing Humphrey’s Executor as binding while ignoring the Supreme Court’s “equally binding” interpretation of the ruling in Seila Law, he said.

The Supreme Court should intervene in this case because it is “indistinguishable from Wilcox and Boyle,” Sauer said.

In addition to seeking an administrative stay, the federal government also asked the Supreme Court to treat the application as a petition for certiorari, or review, which, if granted, could lead to formal oral arguments in the case.

The Supreme Court may revisit the case, known as Trump v. Slaughter, at any time.