Who holds the power to fire executive branch employees: Congress or the president? The US Supreme Court may soon decide. The Court will hear oral arguments in the case Trump v. Slaughter beginning at 10 a.m. Eastern on Monday, December 8. It might seem cut and dry to some: The president is in charge of the executive, he appoints people, so of course he can fire them. But the practical reality isn’t so simple, as the legal landscape is mired in federal legislation and constitutional concerns.
Executive Action
On March 18, President Donald Trump fired FTC Commissioner Rebecca Slaughter. The FTC was established by the Federal Trade Commission Act of 1914 – federal legislation passed by Congress and signed by the president. The agency is led by five commissioners serving seven-year terms who are appointed by the president and confirmed by the Senate. The Act also limits the president’s ability to fire commissioners to cases of “inefficiency, neglect of duty, or malfeasance in office,” none of which Trump claimed when he fired Mrs. Slaughter.
The fired commissioner, who Trump first appointed to the role in 2018, sued to get her job back in federal court in DC, and the US District Court Judge Loren AliKhan ordered the president to reinstate her. The administration then asked the DC Court of Appeals to put the order on hold during an appeal. That court rejected the request two to one.
Both sides agreed the case should be decided by the Supreme Court – though, obviously, with different outcomes – and the justices agreed to take it. Meanwhile, Chief Justice John Roberts, who handles emergency appeals from the District of Columbia, issued a temporary stay on Judge AliKhan’s order pending a final decision in the case.
Who’s the Boss?
The question comes down to this: Can the president fire any member of the executive branch he wants for any reason, or are some positions protected from his wrath? Mrs. Slaughter’s argument is that federal law forbids it, so it’s illegal. Trump’s argument is that any federal law prohibiting presidential action is unconstitutional and runs afoul of the separation of powers established by the Founders.
This question has been at the forefront of American politics since Trump first started firing folks, but the broader battle over executive authority has been brewing for years. In 1935, the Supreme Court considered this very issue in Humphrey’s Executor v. United States. Two years earlier, President Franklin Roosevelt fired FTC Commissioner William Humphrey, arguing that “the aims and purposes of the Administration with respect to the work of the Commission can be carried out most effectively with personnel of my own selection.”
Humphrey passed away a few months later, and his estate sued the government for a salary it argued was owed for the rest of Humphrey’s term. The Court of 1935 upheld the federal law forbidding the president from firing FTC commissioners outside of the three listed causes, and the government was forced to pay. If today’s Court continues that tradition, it could rule that Judge AliKhan’s order be upheld and Rebecca Slaughter gets reinstated. On the other hand, it might leave her off the commission but force the Trump administration to pay her through the rest of the term, which doesn’t end until 2029.
There are a couple of possible outcomes in President Trump’s favor, however. The justices could rule that the reasoning behind the Humphrey’s Executor decision was sound, but that the FTC of today is different enough from the 1930s that, while still valid, that ruling simply doesn’t apply in this case.
A ruling against Trump here supports the status quo: Certain independent agencies of the executive branch – specifically in this case the FTC – are protected from the president’s wrath. Should the Court declare such laws unconstitutional, however, it opens the doors to any president in the future dismissing any member of the executive at will.
Slaughter argues that overturning Humphrey’s Executor would “profoundly destabilize institutions that are now inextricably intertwined with the fabric of American governance.” Indeed, it would – and, some might say, that’s the very task the people elected Trump to accomplish. In the long run, it would allow anyone in the Oval Office to completely reshape the executive branch in his or her own image. In the more immediate future, it would mean yet another outlet for President Trump to drain the Swamp.
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