In an emergency order Monday, the U.S. Supreme Court allowed President Trump to fire Rebecca Slaughter, the last remaining Democratic member of the Federal Trade Commission. The court's action is technically temporary, since the justices said they will hear arguments in the case in December, but every indication is that the conservative court majority will use the case to reverse a major Supreme Court precedent that dates back almost a century.
Congress created the FTC and lots of other agencies to be multi-member, bipartisan regulatory agencies. And the Supreme Court in 1935 upheld those statutes ruling ruled against then-President Franklin D. Roosevelt's claim that he could fire FTC commissioners at will. In a unanimous opinion at the time, the court said Congress acted within its powers in declaring that a commissioner could only be fired for misconduct — not for a policy disagreement.
But now, prodded by President Trump, the court's six-member conservative majority seems poised to remake the way independent agencies operate. And if the handwriting on the wall is as clear as it seems to be, the independent agencies won't be independent. Their membership will be subject to the will of the president.
The court's action Monday was hardly subtle. While the lower courts had ruled that the president could not fire Slaughter, under the court's 1935 precedent, the conservative Supreme Court majority allowed the president to fire her. Indeed, her name isn't even on the FTC website anymore. And the court so far has allowed Trump to fire other agency board members. In short, the justices are not playing hide-the-ball. And it's a good bet that the court will reverse the 1935 precedent, which until now had been reaffirmed multiple times.
The result will be that whereas in the past, these agencies had to be bipartisan, with a minority of opposition party members, now there will be no such requirement. In short, Trump can name all the agency members. And if his successor is a Democrat, he or she can fire all the Republicans.
Since Trump's appointment of three ultra-conservative justices, the Supreme Court's conservative majority has been edging ever closer to reversing the way independent agencies operate. The court's conservatives believe in a so-called unitary executive, meaning that the president is the executive branch, as Chief Justice John Roberts put it in granting Trump significant immunity from prosecution even when he was out of office.
The only exception to what likely will be a major legal tsunami may be the Federal Reserve Board. In an unsigned order earlier this term, the court so far at least seemed to think that the Fed is different because it was established by Congress 112 years ago to stabilize and modernize the banking industry and to set interest rates. But whether that will hold, is anyone's guess.
Dissenting from Monday's order, Justice Elena Kagan, writing for the court's three liberal justices, said that Congress created the FTC and other independent agencies to ensure they would be bipartisan.
"The majority may be raring to change the law passed by congress nearly a century ago," she said. "But our emergency docket, should not be used, as it has been here, to transfer government authority from Congress to the President and thus to reshape the nation's separation of powers."
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