Supreme Court Poised to Turbocharge Trump’s Bid for Total Control of Government

The Supreme Court heard arguments Monday in a case that could allow the court’s conservatives to supercharge President Donald Trump’s effort to assert absolute control over agencies that regulate the economy, the stock market, federal campaign finance and communications.

At issue in the case is Trump’s attempt to fire Rebecca Slaughter, the last remaining Democratic commissioner on the Federal Trade Commission (FTC).

Throughout oral arguments, the court’s Republican-appointed majority appeared to be leaning toward shattering a key limit to the president’s ability to influence agencies that Congress designed to be insulated from direct White House control.

The court’s Democratic-appointed minority appeared deeply concerned that granting the president unrestricted power to remove any official of the executive branch would grant the president unprecedented powers.

At one point in the hearing, Justice Sonia Sotomayor warned that through the case, the court could dismantle the modern U.S. government.

“You’re asking us to destroy the structure of the government,” Sotomayor said to Solicitor General D. John Sauer, who defended Slaughter’s dismissal before the court Monday.

In March, Trump fired Slaughter without cause, even though the 1914 law that established the FTC states that presidents can only remove commissioners for “inefficiency, neglect of duty, or malfeasance.”

Instead of stating a cause for her dismissal, Trump claimed Slaughter’s continued service on the independent commission was “inconsistent with [his] Administration’s priorities.”

“Accordingly, I am removing you from office pursuant to my authority under Article II of the Constitution,” Trump claimed in an email.

Slaughter’s dismissal was a direct challenge to Humphrey’s Executor v. U.S., a landmark 1935 Supreme Court ruling that upheld Congress’ authority to protect the heads or board members of independent agencies from arbitrary presidential dismissals.

Slaughter challenged her dismissal, arguing Trump violated the Federal Trade Commission Act and Supreme Court precedent. 

Citing Humphrey’s, lower courts agreed with Slaughter and reversed her dismissal. 

In September, however, the Supreme Court stayed Slaughter’s return to the FTC — effectively exempting Trump from standing court precedent without explanation.

Alongside blocking Slaughter’s reinstatement, the Supreme Court agreed to weigh in on her case and ordered oral arguments on whether the “for cause” removal protections currently enjoyed by FTC members violate the president’s authority and, if so, whether Humphrey’s should be overturned.

Slaughter, and several other outside parties who have asked the court to reject her dismissal, have argued that Humphrey’s is fundamental to upholding the rule of law and shielding certain governmental processes from undue political interference. 

The Trump administration has asked the court to overturn Humphrey’s, claiming that the  protections impose “a distinct constitutional harm” on the president by limiting his ability to remove those who are exercising executive power on his behalf.

Sauer opened the arguments by describing Humphrey’s as “grievously wrong” and an “indefensible outlier” and “decaying husk” that must be overruled. In order to fully exercise their power, Sauer claimed, presidents must be able to dismiss executive branch officials for any reason.

The government’s argument largely stems from the unitary executive theory, a once-fringe legal doctrine which asserts that the president must have unlimited power to control the actions of the four million people who make up the executive branch. 

It has been the guiding theory behind Trump’s authoritarian bid to overhaul the executive branch without input from Congress, which has a constitutional authority to define what the federal government looks like.

The court’s liberal justices were deeply concerned by Sauer arguments and repeatedly asked if overturning Humphrey’s wouldn’t put a whole slate of officials at risk, including judges in the U.S. Tax Court, Court of Federal Claims and Court of Appeals for the Armed Forces.

Sauer largely sidestepped their questions about executive branch judges but eventually stated that he believed that over two dozen agencies could be affected by the court’s ruling.

Justice Sotomayor asked Sauer if the court had ever overturned a precedent so fundamental to the standing structure of the government.

After listing court cases rejected by Sotomayor, Sauer claimed that Humphrey’s originally “distorted” the government’s structure. 

“Aren’t you asking us to distort it in another way?” Sotomayor responded.

Based on Monday’s arguments, its response to Slaughter’s removal and its actions in other dismissal cases, it appears the Supreme Court’s conservative majority intends to significantly narrow or overturn Humphrey’s.

Before it stayed Slaughter’s reinstatement, the majority also upheld Trump’s dismissals of members of two other independent agencies. 

In that ruling, conservative justices claimed that lower court orders reinstating those officials harmed the president — a clear sign that they believe at least some removal protections violate the separation of powers. 

With exception to Justice Brett Kavanaugh, the conservative justices offered little pushback to Sauer’s claims and largely did not voice concerns about a president having unfettered removal powers. Kavanaugh’s concern, though, was limited to the Federal Reserve. 

Previously, in other Trump dismissal cases, the conservative majority said that certain members of the Federal Reserve should be protected from arbitrary dismissals because the central bank “is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States.”

After being asked by Kavanaugh on how overturning Humphrey’s would affect the Federal Reserve, Sauer said the government agreed with the court’s previous holding and was not currently challenging removal protections for Fed officials.

Justice Elena Kagan, however, noted that the government’s argument should permit arbitrary Fed dismissals too. 

“It does not seem there is a stopping point,” Kagan said. She added that independent agencies wield significant legislative and judicial powers — authorities generally exercised by Congress and the judiciary.  

Giving the president direct control over those agencies, Kagan said, risks creating “massive unchecked, uncontrolled presidential power effectively to legislate and judge.”

While Trump isn’t currently threatening removal protections for Fed officials, he is challenging the central bank’s independence.

Just weeks after the Supreme Court issued its carve-out for Fed officials, Trump attempted to fire Federal Reserve Governor Lisa Cook for alleged actions that were unrelated to her professional performance. 

The Supreme Court temporarily blocked Cook’s dismissal and will hear arguments over Trump’s attempt to remove her in January.