When the U.S. Supreme Court listened to oral arguments in Trump v. Slaughter on Monday, December 8, the three Democratic appointees — Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson — expressed strong misgivings about President Donald Trump's position in the case.
The "Slaughter" challenging Trump is Rebecca Slaughter, a former Federal Trade Commission (FTC) commissioner Trump fired. The former FTC official is arguing that presidents shouldn't be able to fire people from independent agencies established by Congress, as they play an important role in the United States' system of checks and balances. But Trump and his allies are invoking a far-right legal doctrine known as the Unitary Executive Theory and maintain that U.S. presidents have every right to fire people from independent agencies.
MS NOW's Lisa Rubin, offering legal analysis after the hearing, characterized Kagan's position as Trump trying to make an "enormous power grab with real consequences for our country." Georgetown University law professor Paul Butler, joining Rubin and host Ana Cabrera on the panel, agreed with Rubin's analysis but predicted that the High Court's GOP-appointed right-wing supermajority will "almost certainly" rule in Trump's favor.
The New Republic's Matt Ford is also confident that the justices will side with Trump. And in an article published on December 9, he warns that U.S. consumers will suffer for it.
"Precedent is on Slaughter's side," Ford argues. "In the 1935 case Humphrey’s Executor v. United States, the Supreme Court upheld the for-cause removal protections for FTC commissioners. The justices acknowledged that presidents could generally remove top federal officials at will, but argued that this power was more limited in the FTC context because agencies like it also exercised 'quasi-legislative' and 'quasi-judicial' powers. Congress has relied on that decision to structure much of the federal government over the past century."
Regardless, Ford doubts that the High Court's GOP appointees will agree with Rebecca Slaughter's arguments.
"Under the Constitution," Ford explains, "Congress has the power to regulate interstate commerce. To exercise these powers, lawmakers created a host of federal agencies over the years to enact regulations and enforce federal law. Some of these agencies, like the FDA (Food and Drug Administration) and the EPA (Environmental Protection Agency), are directly under the president's control because he can fire the officials who lead them. Other agencies are structured to be more independent. The Federal Trade Commission, the agency at issue in this case, enforces federal antitrust law and some consumer-protection laws, with a mandate to prevent fraudulent, anticompetitive, and deceptive business practices. To ensure that the FTC operated in the interests of good government, Congress placed it under the direction of a board of Senate-confirmed commissioners and insulated them from unjustified removal by the president."
Ford continues, "This has generally been a good thing for the American people. Agencies like the FTC, the Securities and Exchange Commission, the National Labor Relations Board, and so on have existed for roughly a century now — a century where Americans enjoyed unprecedented growth in prosperity, quality of life, and individual liberty."
But Ford warns that "the conservative legal movement" and the High Court's right-wing justices have "a much different view." And he believes that the Humphrey’s Executor standard from 90 years ago is "doomed."
Ford writes, "They favor the Unitary Executive Theory, whereby presidents should be able to wield absolute control over every aspect of the executive branch…. It is virtually certain that Slaughter will lose. "
Read Matt Ford's full article for The New Republic at this link.