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By July, a Biden-appointed judge, Loren AliKhan, ruled in their favor, claiming President Trump had overstepped his authority when he removed Democrat Commissioner Rebecca Kelly Slaughter. That ruling immediately sparked a legal battle, with the Trump administration appealing the decision.
This week, the DC Circuit Court of Appeals backed the earlier ruling and reinstated Slaughter, citing the 1935 Supreme Court case Humphrey’s Executor as precedent.
“Humphrey’s Executor controls this case and binds this court,” the appeals judges wrote, emphasizing that the Supreme Court had long ago ruled the president’s power to fire FTC commissioners was limited unless there was clear misconduct.
The three-judge panel wasn’t without controversy. Two judges appointed by President Obama, Millett and Pillard, ruled in favor of Slaughter, while Judge Rao, a Trump appointee, issued a scathing dissent.
Rao didn’t mince words:
“This case presents a now-familiar set of facts. President Donald Trump fired a commissioner of a so-called independent agency without cause. The district court held that such removal was unlawful, ordered reinstatement of the officer, and entered a sweeping permanent injunction that, among other things, ordered everyone at the agency to treat the officer as if she were never removed by the President. In two virtually identical cases, the Supreme Court has stayed similar injunctions,” Rao wrote.
The Trump-appointed judge also blasted the lower court for interfering with presidential powers.
“To begin with, the injunction interferes with the President’s exclusive powers. The district court nominally ordered the remaining FTC Commissioners and their subordinates and agents not to remove Slaughter, but these officials have no power to remove her. By statute, only the President may remove an FTC commissioner. See 15 U.S.C.§ 41. The district court employs a toothless remedial fiction because it cannot enjoin removal by the President,” Rao added.
Finally, Rao warned the order forces the FTC to ignore the President’s decision altogether.
“More to the point, by ordering the remaining FTC Commissioners and their subordinates to treat Slaughter as though she is still in office, the district court expressly orders them to disregard the President’s directive. Although the district court refrained from enjoining the President explicitly, the injunction attempts to countermand the President’s removal by ordering the remaining Commissioners to ignore and to act contrary to the President’s removal of Slaughter,” Rao wrote.
With this ruling, the battle over presidential authority versus so-called “independent” agencies is far from over.
