Whether former Federal Trade Commission (FTC) Commissioner Rebecca Kelly Slaughter could be constitutionally fired without cause by the president was before the U.S. Supreme Court in oral arguments on Dec. 8. The president’s authority to remove other independent agency members at will, including those at the National Labor Relations Board (NLRB) also was considered. The decision, one of the biggest before the court this term, likely also will impact whether U.S. Equal Employment Opportunity Commission (EEOC) commissioners may be removed without cause.
An agency’s voting members play a monumental role in steering an agency’s focus.
At issue in the case (Trump v. Slaughter) before the Supreme Court is whether Congress can, through statute, limit the president’s ability to remove officials serving on bipartisan independent boards housed within the executive branch.
The oral arguments in Slaughter came on the heels of a Dec. 5 decision by the D.C. Court of Appeals, which ruled that the removal protections for the members of the NLRB and the Merit Systems Protection Board were unconstitutional. The D.C. Court of Appeals found that these positions did not fall within Humphrey’s Executor v. United States, because their functions are largely executive in nature. In the 90-year-old decision of Humphrey’s Executor, the Supreme Court upheld the constitutionality of the FTC Act’s language limiting the president’s removal power to removal for cause only.
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