A federal judge has ruled that the President Trump violated federal law when he fired Rebecca Slaughter, a Democrat, as a member of the FTC.
“Ms. Slaughter remains a rightful member of the Federal Trade Commission until the expiration of her Senate-confirmed term on September 25, 2029 … and … she may only be removed by the President for ‘inefficiency, neglect of duty, or malfeasance in office,’” Judge Loren AliKhan, of the U.S. District Court for the District of Columbia, ruled.
She wrote that, “Congress made a deliberate choice to build the FTC as an independent agency, comprised of a ‘multimember body of experts, balanced along partisan lines,’ to protect the American population from unfair, deceptive, and exploitive business practices.”
Alvaro Bedoya and Rebecca Slaughter were dismissed from the FTC without cause. They filed suit, contending that their dismissals were illegal since the FTC is supposed to be an independent agency. They said that Trump’s decision was in direct violation of federal law and Supreme Court precedent.
Bedoya resigned before he potentially could be reinstated, so Judge AliKhan ruled that his claim was moot.
Slaughter and Bedoya had said that FTC members are protected by the 1935 decision of the Supreme Court in Humphrey’s Executor v United States, which upheld the constitutionality of the for-cause removal standard applicable to FTC commissioners.
The judge agreed.
“These facts almost identically mirror those of Humphrey’s Executor,” she wrote.
She said that in Humphrey’s, the Supreme Court ruled that the FTC Act’s for-cause removal protections were Constitutional.
“In arguing for a different result, [the administration asks] this court to ignore the letter of Humphrey’s Executor and embrace the critiques from its detractors,” Judge AliKhan wrote.
She said that the administration hopes that she will overrule a 90-year-old, unanimous binding precedent.
“Humphrey’s Executor remains good law today,” she wrote. “Over the span of ninety years, the Supreme Court has declined to revisit or overrule it.”
“Humphrey’s Executor remains binding on this court,” she concluded.
The District Court entered summary judgment in favor of Slaughter. Notwithstanding the court’s steadfast reliance on Humphrey’s Executor, such reliance may not carry the day. The court’s ruling contrasts with an earlier case in which Trump had fired without cause Democratic members of the National Labor Relations Board and the Merit Systems Protection Board. After the District Court granted a preliminary injunction reinstating those members and the Court of Appeals denied a request to stay the preliminary injunction reinstating those, the Supreme Court, by a 6-3 majority, granted the stay. Significantly, in doing so, the Supreme Court cast doubt on the continued viability of the Humphrey’s Executor opinion as we explained in our earlier blog.
As a result of this Supreme Court opinion, it is premature for Slaughter to celebrate her reinstatement since the Government has already appealed the case to (and sought a stay of the District Court’s order from) the Court of Appeals. If the Court of Appeals refuses to grant such a stay, it seems likely that the Supreme Court will grant a stay based on the logic of the Supreme Court’s opinion in the NLRB case.
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