Trump administration asks justices to block reinstatement of FTC commissioner

Updated on Sept. 4 at 9:44 p.m.

The federal government on Thursday asked the Supreme Court to temporarily pause a ruling by a federal appeals court that requires the Trump administration to reinstate a commissioner on the Federal Trade Commission whom President Donald Trump fired this spring. In a 30-page filing, U.S. Solicitor General D. John Sauer wrote that the case is “indistinguishable” from previous disputes in which the court blocked similar efforts to force reinstatement of senior officials. 

Sauer also asked the court to treat his filing as a petition for review without waiting for the U.S. Court of Appeals for the District of Columbia Circuit to rule on the government’s appeal – a maneuver known as “cert before judgment.”

Although the case comes to the court on its emergency docket, it sets up yet another test of the president’s ability to fire the heads of independent multi-member agencies, as well as the weight that the Supreme Court’s earlier rulings on its emergency docket should carry going forward.

The Federal Trade Commission describes its mission as “protecting the public from deceptive or unfair business practices and from unfair methods of competition through law enforcement, advocacy, research, and education.” It has five commissioners, who are appointed by the president and confirmed by the Senate; no more than three of the commissioners may come from any one political party. The president can only remove a commissioner from office “for inefficiency, neglect of duty, or malfeasance in office.”

In March, Trump fired Rebecca Slaughter, a Democratic appointee to the FTC. Trump told Slaughter that allowing her to remain on the commission would be “inconsistent with [the] administration’s priorities.”

Slaughter went to federal court in Washington, D.C., to challenge the legality of her removal. U.S. District Judge Loren AliKhan ordered the Trump administration to reinstate Slaughter. (Alvaro Bedoya, another Democratic appointee who was fired at the same time as Slaughter and joined her lawsuit, ultimately resigned from the commission, citing financial reasons.)

The Trump administration went to the U.S. Court of Appeals for the District of Columbia Circuit, asking that court to put AliKhan’s ruling on hold while it appealed. By a vote of 2-1, the court of appeals declined to do so.

In an unsigned opinion, Judges Patricia Millett and Nina Pillard explained that the Trump administration had no chance of prevailing on appeal, a key point in deciding whether to grant temporary relief. The Supreme Court’s 1935 decision in Humphrey’s Executor v. United States, in which the justices “upheld the constitutionality of the Federal Trade Commission Act’s for-cause removal protection for Federal Trade Commissioners,” applies fully here, they reasoned.

The majority acknowledged that, in other proceedings on the emergency docket, the Supreme Court had allowed the president to remove members of the National Labor Relations Board, the Merit Systems Protection Board, and the Consumer Product Safety Commission without good cause. But those cases, the majority said, “do not permit this court to do the Supreme Court’s job of reconsidering” the decision in Humphrey’s Executor – particularly when this dispute involves the same agency as in Humphrey’s Executor and therefore (unlike the earlier proceedings) would not require “an extension of Humphrey’s Executor to a new context.”

In a dissenting opinion, Judge Neomi Rao indicated that she would have granted the government’s request to put AliKhan’s order on hold. In Rao’s view, the earlier proceedings on the emergency docket were “virtually identical” to Slaughter’s case. And even if Slaughter’s removal did violate federal law, she continued, AliKhan went too far in ordering the Trump administration to reinstate Slaughter, because such a command (among other things) “interferes with the President’s exclusive powers.”

In his Thursday filing, Sauer contended that the majority “applied an overly expansive reading of Humphrey’s Executor” that the court has since “repudiated.” Since Humphrey’s Executor was handed down, the FTC “has amassed considerable executive power” and become more like the agencies at the center of the previous emergency docket decisions than the FTC of 1935, according to Sauer. “This Court concluded that the government was likely to succeed on the merits in challenging reinstatement of NLRB, MSPB, and CPSC heads,” he wrote. “The government is at least as likely to succeed as to the FTC here.”