FTC Chair Ferguson: SCOTUS Ruling Reinforces Trump’s Commissioner Firings

Slaughter and Bedoya in March sued Trump, Ferguson and the FTC over their “illegal” firings, citing protections established by the high court’s unanimous 1935 decision in Humphrey’s Executor (see 2503270056).

SCOTUS issued an order Thursday granting the administration’s request for a stay of two district court decisions enjoining Trump from firing members of the National Labor Relations Board and a Merit Systems Protection Board employee. Conservative justices issued the order in an emergency docket for Trump v. Wilcox. Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson dissented.

The court’s order acknowledges federal statutes bar the president from firing officers without cause, and “no qualifying cause was given” in the board firings. But because the Constitution “vests the executive power in the President ... he may remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions recognized by our precedents,” the court added. “The stay reflects our judgment that the Government is likely to show that both the NLRB and MSPB exercise considerable executive power.” The court said a stay will allow justices to hear full briefing and argument. “The stay also reflects our judgment that 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.”

DOJ filed a notice of supplemental authority Friday on behalf of Trump, Ferguson and the FTC before the U.S. District Court for the District of Columbia, which is expected to soon decide the legality of the recent FTC firings.

“FTC Commissioners exercise considerable executive power that matches or exceeds the power that members of the NLRB and MSPB wield,” said DOJ. “Accordingly, the Supreme Court’s stay counsels against” reinstating the commissioners.

Tennessee Attorney General Jonathan Skrmetti (R), who filed in support of Trump in the case, said in a statement Friday that the "suspect reasoning" of Humphrey’s Executor "does not insulate modern-day administrative agencies from accountability to the elected president." Under Article 2 of the U.S. Constitution, "all executive power is accountable to the president," he said. "There are numerous constitutional limits on executive power but within those limits the president has the ultimate say over how federal executive power is exercised."

Legal experts told us Friday the Supreme Court order signals the firings are likely to be upheld by the high court after argument.

“The current President believes that Humphrey’s should be either overruled or confined,” Kagan wrote in the liberal justices’ dissent. “And he has chosen to act on that belief—really, to take the law into his own hands. Not since the 1950s (or even before) has a President, without a legitimate reason, tried to remove an officer from a classic independent agency.” Congress protected board members from presidential removal without good cause, and Humphrey’s “instructs that Congress can do so without offending the Constitution,” Kagan wrote: To fire officers, the president “needs good cause, which he admits he does not have. The only way out of that box is to upend Humphrey’s.”

Expect the Supreme Court to rule Humphrey's doesn’t apply to modern agencies wielding significant executive power, said Devin Watkins, attorney for Competitive Enterprise Institute, which filed in support of Trump in Wilcox. “All of this foundationally is about the fact that executive power is vested in the president,” he said. “That’s directly from the Constitution.”

U.S. District Court Judge Reggie Walton for the District of Columbia on Wednesday ruled Trump’s recent firings at the Privacy and Civil Liberties Board were illegal based on congressional intent and the Constitution (see 2505210073).

TechFreedom President Berin Szoka said that because PCLOB is “purely a watchdog and exercises no enforcement or legislative powers,” it should be on the “strongest ground, but we'll see." The issue is important because the EU's adequacy finding on the EU-US Data Privacy Framework “rests on the independence of PCLOB and the FTC," he said.

Even before the Supreme Court decision Thursday, the “handwriting was on the wall that Humphrey’s Executor likely would be overruled, or sharply curtailed,” said Free State Foundation President Randolph May. “Now the handwriting is even more clear. I don’t see anything that would protect” members of multimember commissions like the FTC and FCC from firings.

“Almost certainly the court will say these [board members] can be fired,” said Greg Dolin, senior litigation counsel with the New Civil Liberties Alliance, which filed in support of Trump in Wilcox. But the exact remedies, in terms of monetary relief and reinstatement, are harder to predict, he said: There are open questions about how far, if at all, the court will go in reversing Humphrey's, even if the court finds the decision no longer applies to modern agencies like the FTC.