The Supreme Court on Monday temporarily allowed President Donald Trump to keep a Democratic appointee to the Federal Trade Commission off the job while the high court considers an emergency petition in a case that could reshape presidential authority over independent agencies.
Chief Justice John G. Roberts Jr. issued a brief order staying an appeals-court decision that had permitted Commissioner Rebecca Kelly Slaughter to return to the FTC. The order said Slaughter should remain terminated "at least for the next week" while the justices consider whether to take up the dispute.
The emergency filing by the Department of Justice asks the Supreme Court to block lower-court rulings that found Mr. Trump lacked authority to fire Slaughter and another Democrat-appointed commissioner, Alvaro Bedoya, at will. The commissioners serve seven-year terms under the Federal Trade Commission Act and are traditionally removable only "for cause," such as malfeasance, a protection the administration argues should not apply in this instance.
The litigation has produced a series of quick reversals below. A federal district court reinstated Slaughter after Mr. Trump removed her; an appellate court then allowed her return on Sept. 2, and she resumed official duties and posted several dissents she authored on social media. That ruling was short-lived: the administration secured an order that again permitted the president to remove her. Monday's Supreme Court action temporarily preserves the president's most recent step while the court weighs its next move.
The case puts squarely before the justices a nearly 90-year-old precedent, Humphrey's Executor v. United States, in which the Supreme Court held that President Franklin D. Roosevelt's removal of an FTC commissioner was unlawful. Humphrey's Executor has long been interpreted to limit the president's ability to remove officials of independent regulatory agencies whose functions are considered quasi-legislative or quasi-judicial.
Legal scholars and observers have noted that the current conservative-leaning Court appears more open than earlier benches to narrowing or overturning Humphrey's Executor. In recent years the court has issued decisions expanding executive authority in other contexts, and litigation since Mr. Trump's removals has been viewed as one of the clearest potential tests of whether the court will curtail protections for agency independence.
The Supreme Court previously has allowed the administration to proceed temporarily with firings at other independent agencies while litigation continues, but Slaughter's case is among the most direct challenges to the long-standing removal limitation. If the justices ultimately decline to uphold Humphrey's Executor, it could alter the tenure protections of heads and commissioners across a range of federal regulatory bodies.
The FTC itself has continued to function amid the dispute. Commissioners and agency staff have pursued normal regulatory and enforcement activities when a quorum of voting commissioners was available. The partisan balance and timing of decisions at the commission have been central to the stakes in the litigation, with Democratic appointees arguing that at-will removal undermines the independence intended by Congress.
On the other side, the Justice Department's emergency filing characterized the issue as one of the president's constitutional authority to remove executive officers, asking the Supreme Court to grant interim relief while the underlying legal questions are litigated in the lower courts. The court did not provide an explanation in the brief order for its temporary stay beyond indicating the matter will be considered further.
The justices' decision whether to hear the case will determine the next phase of litigation: if the Court declines review, lower-court rulings will control; if it accepts the case, months of briefing and argument could follow before a definitive ruling. For now, Slaughter remains out of the commissioner's chair as the highest court decides whether to take up a dispute that could have far-reaching implications for the independence of federal regulatory agencies.
