The Supreme Court just cracked open one of Washington’s oldest sacred cows, and judging by Monday’s arguments in Trump v. Slaughter, the conservative majority may be ready to take a chainsaw to the 90-year bureaucracy shield Democrats treat like a family heirloom. The fight centers on whether President Donald Trump can fire an FTC commissioner without cause, something any normal person would assume the elected President should obviously be able to do. But this is Washington, where unelected regulators magically outrank voters and a dusty 1935 case, Humphrey’s Executor, has been used to protect the administrative state like it’s an endangered species.
For nearly three hours, the justices went back and forth over Trump’s removal of Rebecca Slaughter, a Democrat serving on the FTC long before her term ended. Slaughter sued, claiming presidents can’t fire commissioners unless they’re guilty of “inefficiency, neglect of duty, or malfeasance.” Translation, you can’t get fired even if the President doesn’t trust you or thinks you’re advancing the exact opposite agenda the American people voted for.
Solicitor General D. John Sauer didn’t sugarcoat things. He called Humphrey’s an “indefensible outlier” and a “decaying husk,” which is about the nicest description anyone has given that ruling in decades. Liberals, naturally, acted like the sky was falling. Slaughter’s lawyers warned that if the case goes, “everything is on the chopping block.” They’re basically admitting what conservatives have said for years, the administrative state exists to block elected presidents.
But the conservative justices were clearly unimpressed with the idea that Congress can build fiefdoms immune from presidential oversight. Chief Justice John Roberts pressed the point, noting that the FTC back in 1935 had “very little, if any, executive power.” Today it’s a sprawling enforcement machine. That matters.
Justices Brett Kavanaugh and Amy Coney Barrett signaled they might be open to narrowing the precedent rather than nuking it entirely, but they didn’t hide their skepticism. The liberals, meanwhile, melted. Justice Sonia Sotomayor accused Trump of trying “to destroy the structure of government,” which is hilarious considering the structure she’s defending is one where the President can’t fire his own subordinates. Justice Elena Kagan added, “Once you’re down this road, it’s a little bit hard to see how you stop.” Exactly. That’s the point.
If Humphrey’s falls or even weakens, presidents could finally fire regulators at the SEC, NLRB, and other alphabet agencies that have been acting like their own little governments. And with Trump already facing lawsuits from fired Democratic board members across multiple agencies, this showdown is only heating up.
A decision is expected by June, and if Monday was any indication, the days of bureaucrats outranking the President may finally be numbered.
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