Donald Trump’s administration asked the US supreme court on Thursday to let him temporarily remove a Democratic member of the Federal Trade Commission, as the legal fight over the Republican president’s dismissal of her plays out.
The justice department made the request after Washington-based US district judge Loren AliKhan blocked Trump’s firing of Rebecca Slaughter from the consumer protection agency that enforces antitrust law prior to her term expiring.
AliKhan ruled in July that Trump’s attempt to remove Slaughter did not comply with removal protections in federal law. Congress put such tenure protections in place to give certain regulatory agencies a degree of independence from presidential control.
The US court of appeals for the District of Columbia circuit on Tuesday in a 2-1 decision upheld the judge’s ruling, prompting the administration’s request to the supreme court.
The lower courts ruled that the statutory protections shielding FTC members from being removed without cause conform with the US constitution in light of a 1935 supreme court precedent in a case called Humphrey’s Executor v United States.
In that case, the court ruled that a president lacks unfettered power to remove FTC commissioners, faulting then president Franklin D Roosevelt’s firing of an FTC commissioner for policy differences.
The administration in its supreme court filing on Thursday argued that “the modern FTC exercises far more substantial powers than the 1935 FTC”, and thus its members can be fired at will by the president.
In May, the supreme court in a similar case allowed Trump to remove two Democratic members of the National Labor Relations Board and Merit Systems Protection Board – despite job protections for these posts – while litigation challenging those removals proceeded.
In July, the court let Trump remove three Democratic members of the government’s top consumer product safety watchdog while a legal challenge to their removal proceeds, despite tenure protections for these posts.
The supreme court, which has a 6-3 conservative majority, has sided with the administration in almost every case that it has been called upon to review since Trump returned to the presidency in January.
