WASHINGTON—The U.S. Supreme Court has ruled that President Donald Trump has the power to fire commissioners at independent agencies without cause.
The landmark 6-3 ruling overturns a precedent dating back more than 90 years and significantly strengthens executive branch authority over such agencies as the Federal Trade Commission and the Federal Communications Commission, which were established by Congress to be somewhat insulated from political influence.
In the 6-3 majority opinion, Chief Justice John G. Roberts Jr. ruled that Trump had the right to fire Rebecca Slaughter, a Democratic FTC member, without cause and that the “FTC’s for-cause removal provision is contrary to the separation of powers enshrined in the Constitution.”
The case has important implications for other independent agencies such as the FTC, the Securities and Exchange Commission and the FCC because it would allow the president to fire anyone without cause.
It could also give the president much greater control over the federal bureaucracy by providing him with the authority to fire or retain people based on political loyalty and partisan politics.
In a strongly worded dissent, Associate Justice Sonia Sotomayor wrote that the majority opinion “reshapes our Government. Dozens of independent commissions are now likely to become purely executive agencies, shifting tremendous power over broad swaths of American life into the President’s hands…For more than 90 years, Congress believed, with this Court’s express approval, that it was allowed to create a workable Government, including by granting certain agencies tasked with certain responsibilities some independence from Presidential control. In rejecting that project, after decades of promising the political branches that structures like the FTC’s were permissible, the Court creates an Executive Branch that Congress never dreamed of establishing and that it now has little hope of ever reining in.”
In a separate case, however, SCOTUS ruled 5-4 in Trump v. Cook that Federal Reserve Governor Lisa Cook,could remain in her job while she challenges Trump’s efforts to fire her.
The Trump v. Slaughter decision was immediately blasted by Democrats and the FCC’s lone Democratic commissioner, Anna Gomez.
U.S. Senator Maria Cantwell (D-Wash.), ranking member of the Senate Committee on Commerce, Science and Transportation, complained that “today, the Supreme Court’s conservative majority overturned a 91-year-old precedent and once again delivers for President Trump. Congress created independent agencies to shield critical decisions from short-term partisan whims and to ensure bipartisan and well-reasoned decision-making. By gutting these protections, the Supreme Court is throwing the door open for politics—not the public interest—to be the guiding star for future decisions. Congress must take action to preserve the ability for agencies to deliver expert, fact-based results for the American people.”
Said Gomez: “This decision puts at risk how Congress intended independent agencies to function in American democracy. When Congress established the Federal Communications Commission, it made a deliberate choice to create a multimember, multiparty, independent body insulated from political pressure precisely because the decisions this agency makes about who can speak over the public airwaves, how spectrum is allocated, and how communications markets are regulated, are too consequential to be made on the basis of political loyalty. We are already seeing what political control of this agency looks like in practice, through investigations targeting broadcasters and government critics for coverage this administration finds unfavorable.”
Gomez also noted the apparent contradiction between the two decisions. “In a companion decision, the Court protected the Federal Reserve from political interference while leaving media regulators exposed," she noted. "Democracy depends on a free press and the preservation of free expression through all communication technologies as much as it depends on a stable economy."
“For nearly a century, the FCC’s credibility as an expert-driven regulatory body has been a cornerstone of American leadership in global communications,” Gomez continued. “When we negotiate spectrum agreements with foreign governments and international bodies, our counterparts trust that our positions reflect technical expertise and legal authority, not the political preferences of whoever occupies the White House at a given moment. That credibility is difficult to build and easy to destroy, and the uncertainty created by this decision puts it at risk in ways that will reverberate far beyond our borders.
“When commissioners can be removed for their policy views rather than for cause, the inevitable result is an agency that pulls its punches and defers to political winds rather than the record before it,“ Gomez added. “Consumers pay the price for that kind of regulatory timidity in higher costs, fewer choices and slower progress toward the connected future this country deserves.”
While Trump has removed commissioners in other agencies for critical comments, Gomez has some protection in that the FCC needs a quorum of three commissioners to take action and her removal would prevent votes on upcoming matters.
