Trump Asks Supreme Court to Uphold His Firing of FTC Member

The high court made a temporary order on Sept. 8 allowing the firing of Federal Trade Commission member Rebecca Slaughter while litigation plays out.

Federal Trade Commissioner Rebecca Slaughter participates in a privacy roundtable at CES 2020 at the Las Vegas Convention Center on Jan. 7, 2020. David Becker/Getty Images

President Donald Trump urged the Supreme Court on Sept. 16 to leave his firing of Federal Trade Commission (FTC) member Rebecca Slaughter intact after the high court temporarily upheld it 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.

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.

Solicitor General D. John Sauer said in a new brief filed on behalf of the president that the Supreme Court should leave the termination in place because the federal government is likely to demonstrate that the lower court that reinstated Slaughter “exceeded its remedial authority.”

Sauer said FTC members are no longer shielded from termination by Humphrey’s Executor v. United States (1935), which upheld legal limitations that Congress imposed on removing members of the FTC, which is considered to be an independent federal agency.

Since 1935, the commission has become so powerful that it wields “core executive power” and “must be fully accountable to the president,” meaning the president should be able to fire its members at will, the solicitor general added.

Trump’s termination of 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.

Chief Justice John Roberts issued an administrative stay on Sept. 8 pausing until further notice a July 17 ruling by U.S. District Judge Loren L. AliKhan. The judge ruled that Slaughter’s termination was unlawful because it was barred by the Humphrey’s Executor precedent.

The Supreme Court’s administrative stay gives the justices extra time to fully consider the case.

The district 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.

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.

In the D.C. Circuit Court’s ruling, Circuit 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.

Sauer said in the Sept. 16 brief that the Supreme Court ruled in Seila Law v. Consumer Financial Protection Bureau (2020) that Humphrey’s Executor was concerned with the more modest powers that the FTC had in 1935, not the powers it exercises today.

“Humphrey’s Executor is not a get-out-of-removal-free card for the FTC no matter how much executive power the agency actually exercises.”

Sauer said the Supreme Court should grant the government’s emergency application to keep Slaughter off the FTC. The court should also treat the application as a petition for certiorari, or review, which, if granted, could lead to formal oral arguments in the case, he added.

Slaughter told the Supreme Court in a Sept. 15 brief that the government’s application should be denied because Humphrey’s Executor, which remains good law, controls the case.

The Supreme Court reaffirmed the ruling in 1958 and 1988, and declined to revisit it in 2010, 2020, and 2021, the brief said.

The brief said the district court was correct to find that Trump’s attempt to fire Slaughter was “unlawful according to the FTC Act [and] Humphrey’s Executor.” The D.C. Circuit found the government was “highly unlikely to succeed on appeal because” the “exact question” it raises in the case “was already asked and unanimously answered by [this] Court in Humphrey’s Executor,” the brief said.

Chief Justice Roberts or the full Supreme Court may revisit the case, known as Trump v. Slaughter, at any time.