Supreme Court expands Trump’s firing powers — but imposes some limits
by Stephen Dinan, Alex Swoyer · The Washington TimesThe Supreme Court on Monday granted presidents wide-ranging authority to fire senior officials over policy differences but said some limits must be observed.
In a pair of decisions, the justices approved President Trump’s firing of Rebecca Slaughter, a Federal Trade Commission member whom the White House booted over political differences. Still, the high court continued to block Mr. Trump’s firing of Lisa Cook from the Federal Reserve, saying he did not give her a chance to challenge his justification for firing her, namely that she engaged in alleged mortgage application misconduct.
Taken together, they give the president vast powers to fire people he sees as roadblocks to his agenda, even at so-called independent agencies that Congress had sought to insulate from such presidential meddling. Yet the ruling demonstrates the president faces stricter procedural hurdles when attempting to remove an official under a statutory “for cause” protection.
Chief Justice John G. Roberts Jr. wrote both opinions, joined by Justice Brett M. Kavanaugh. The court’s other Republican appointees sided with them in the FTC case. In the Federal Reserve case, Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson joined the majority, while Justices Clarence Thomas and Samuel A. Alito Jr. dissented.
“The president must have the assistance of officers he can trust,” the chief justice wrote in the FTC case. “Although it is up to the Senate to decide whether to confirm those with whom the president would prefer to work, neither Congress nor the courts may saddle him with those with whom he cannot work.”
In approving the firing of Ms. Slaughter, a Democratic appointee to the FTC, the justices overruled a 91-year-old precedent in which the Supreme Court blocked President Franklin D. Roosevelt from firing an FTC member.
Mr. Trump’s firing of Ms. Cook at the Federal Reserve did not fare so well.
The president had said she was being fired, not over political differences but rather for cause. He accused her of malfeasance in a past mortgage application.
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Lower courts blocked the firing, allowing Ms. Cook to remain on the job while the case continued.
The justices said Monday that it was the right call.
Chief Justice Roberts said Mr. Trump needed to give Ms. Cook a “meaningful opportunity to respond to the charges made against her.”
“To be clear, the ultimate question of whether the president can remove Cook for cause will depend in part on the underlying facts. In this opinion, we have not addressed the facts,” he wrote. “Rather, we have simply addressed the parties’ arguments about the appropriate legal standards under which the facts must be evaluated.”
The court declined to say exactly what that process must look like, but said Mr. Trump’s Truth Social post warning her she would be fired did not meet that standard.
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The cases are the latest to advance the interests of presidential power and the notion that the president has free rein to shape the executive branch agencies.
Mr. Trump celebrated the FTC decision as “historic,” calling it “the greatest increase in presidential power in the last 100 years.”
“Such a monumental ruling at such an important time,” he said on social media.
He downplayed the loss on the Federal Reserve firing, saying the high court’s ruling was “strictly procedural.” He vowed to continue his pursuit of Ms. Cook’s ouster.
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The key test for the court in the FTC case was whether that agency wielded significant executive power. The court found that it did, and so the president must be able to shape the people who exercise that power on his behalf.
The Federal Reserve, the court said, stands differently.
Chief Justice Roberts said the Fed’s role in setting monetary policy has long set it aside. No less than Alexander Hamilton, who was at the Constitutional Convention and then served as the first Secretary of the Treasury, warned that “suspicion” of political manipulation could undermine monetary policy.
That played out in the establishment of the First Bank of the United States and the Second Bank of the United States, during the country’s early days. The high court said Monday that those same principles apply to the Fed — the natural successor to those original banks, albeit far more powerful.
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The implications of the Federal Reserve ruling remain to be seen.
Yet the ramifications of the FTC firing are widespread. The ruling gives tacit approval to dozens, if not hundreds, of other Trump firings of Democratic appointees. Those include the Merit Systems Protection Board, the National Labor Relations Board, the Consumer Product Safety Commission and the Office of Special Counsel.
Mr. Trump had concluded that his first term was hindered by having too many opponents sitting in key positions within the federal bureaucracy. He came into his second term looking to oust them.
Justice Neil M. Gorsuch, while agreeing with his Republican colleagues in the FTC case that Mr. Trump had wide-ranging firing powers, said the ruling should be a caution to Congress about giving up so much of its power to so-called independent agencies.
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The issue came before the high court 91 years ago, in the Humphrey’s Executor case, after Roosevelt tried to fire William Humphrey, a Republican appointee to the FTC who openly opposed Roosevelt’s New Deal policies.
In 1935, the court ruled against Roosevelt, holding that the FTC exercised quasi-legislative and quasi-judicial powers that placed it beyond the reach of presidential removal authority.
In the decades since, the justices had chipped away at that decision, but Monday’s ruling officially sent it to the dustbin.
“If anything more is left of Humphrey’s, we overrule it,” Chief Justice Roberts wrote. “Humphrey’s has for decades been a result in search of a rationale.”
Justice Sonia Sotomayor, a Barack Obama appointee, wrote the dissent in the FTC case, saying her colleagues were creating an imperial presidency.
“In holding otherwise, the Court gives the president a power unknown even to the English Crown against which the Founders revolted, elevating him above his once coequal branches by transforming a duty to take care that the laws be faithfully executed into a license to act in defiance of those very laws,” she wrote.
America First Legal, a pro-Trump organization, said the rulings recognized a core tenet of executive power.
“Today’s decision restores one of the Constitution’s most fundamental structural protections and reaffirms a simple principle: those who exercise executive power must answer to the President,” said America First Legal President Gene Hamilton.
• An earlier version of this report misidentified Federal Reserve Board member Lisa Cook.
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Stephen Dinan
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