Supreme Court looks poised to give Trump more power to fire federal officials

The Supreme Court seemed poised Monday to expand the President’s power to fire the heads of many regulatory agencies, even as one pivotal justice expressed a desire to insulate the Federal Reserve from political pressure.

President Trump argues presidential control will make agencies like the Federal Trade Commission, the Consumer Product Safety Commission and the Federal Election Commission more accountable to voters who elect presidents.

“The real-world consequences here are human beings exercising enormous governmental authority with a great deal of control over individuals and small and large businesses who ultimately do not answer to the president,” Solicitor General John Sauer told the justices during nearly two and a half hours of oral arguments. “That’s a power vacuum.”

A lawyer for Rebecca Kelly Slaughter, a FTC commissioner fired by Trump, argued that independent agencies have been part of the nation’s governing structure since 1790 as a reason why they should remain in place as they are.

But the court seemed more sympathetic to the Trump administration’s position. Most seemed to agree that the president should be able to remove leaders from at least some agencies and pushed only on how far that could go.

Trump wants the court to overturn a 1935 decision limiting a president’s ability to remove leaders of multi-member administrative agencies, a decision the court has been chipping away at since 2010.

Under the “unitary executive theory” that conservatives have advanced for years, the Constitution gives presidents complete control over executive functions, which must include the power to remove commission members.

In 1935, however, the Supreme Court said the Federal Trade Commission’s duties were “neither political nor executive, but predominantly quasi-judicial and quasi-legislative.”

The Justice Department argues that even if that was a correct interpretation of the FTC in 1935 − which it disputes − it no longer is. “It was grievously wrong when decided,” Sauer told the justices.

Chief Justice John Roberts called that 1935 decision, Humphrey’s Executor v. United States, a “dried husk of whatever people used to think it was” because it has “nothing to do with what the FTC looks like today.”

Kevin King, a partner at Covington & Burling law firm who focuses on appellate and administrative and constitutional law matters, expects the court to overrule − not just further curtail − Humphrey’s Executor.

That would mean President Trump could remove heads of the FTC and of similar agencies. This could be a monumental decision that allows President Trump to enact his agenda without the roadblocks of people in unelected bureaucracy.