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The Supreme Court appeared ready to grant the president far greater control over independent agencies, upending the balance of power in Washington. In court today, the conservative majority largely backed the Trump administration's assertion that the president should be able to fire those who assist him in carrying out his duties for any reason. NPR's Andrea Hsu reports.
ANDREA HSU, BYLINE: The justices heard arguments today in a case involving President Trump's firing of Federal Trade Commissioner Rebecca Slaughter. The FTC is one of a couple dozen government agencies designed by Congress to have some degree of independence from the White House. Under federal law, the FTC's five members can only be removed for cause. That didn't stop Trump from firing Slaughter back in March. A lower court found her firing unlawful, citing a 1935 precedent called Humphrey's Executor. It put limits on the president's power to remove members of some independent agencies. Today, Solicitor General John Sauer, representing Trump, asked the court to overrule Humphrey's, describing it this way.
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JOHN SAUER: It has become a decaying husk with bold and particularly dangerous pretensions.
HSU: The Trump administration's core argument is that Article 2 of the Constitution vests all the executive power in the president. And yet, now you have a bunch of agencies making rules, deciding cases, issuing fines, doing things that affect individuals and businesses all across the country. Sauer said the people running those agencies are not accountable to the president. He argued the president must be able to remove them.
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SAUER: It is not proper for Congress to peel away executive power from the president and give it to someone who's not answerable to the voters.
HSU: Now, Justice Kagan said Congress meant to insulate these agencies from politics. She called that the bargain that's existed over the last century between the legislative and executive branches.
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ELENA KAGAN: And if you take away a half of this bargain, you end up with just massive, uncontrolled, unchecked power in the hands of the president.
HSU: Attorney Amit Agarwal, representing Slaughter, said that would be a departure from history and tradition. He said presidents have understood and appreciated that the American people are better served when there are constraints on their own power. And Agarwal brought it back to the FTC. In 1914, Congress created the agency to protect consumers and businesses from unfair competition. If the court gives the president power over the agency, he warned...
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AMIT AGARWAL: Tomorrow, you'll have a situation where the president can come in and unilaterally decide what constitutes an unfair method of competition, what constitutes an unfair trade practice.
HSU: And Agarwal warned the same scenario could play out at other agencies, including the Federal Reserve.
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AGARWAL: Everything is on the chopping block.
HSU: Now, the Supreme Court, through its emergency docket, already signaled that it might create a special carve-out for the Fed, and it will hear arguments on that in January. But in today's case, conservative justices dismissed the idea that granting the president more powers would destabilize the government. Instead, they raised their own hypotheticals of what could happen if the court continues to insulate independent agencies from the president's control. What if Congress decided to give members 20-year terms? Why couldn't Congress just convert traditional cabinet agencies to multimember commissions? Here's Justice Alito.
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SAMUEL ALITO: How about Veterans Affairs? How about Interior? Labor? EPA? Commerce? Education? What am I missing?
NEIL GORSUCH: Agriculture.
ALITO: Agriculture.
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KETANJI BROWN JACKSON: Mr. Agarwal...
HSU: Agarwal acknowledged that it wasn't out of the realm of possibility for Congress to convert a small number of agencies into multimember commissions, but he said it would have to be worked out through political accommodations between Congress and the president, and so it was unlikely. That answer didn't seem to satisfy the conservatives, including Chief Justice Roberts.
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JOHN ROBERTS: I'm sorry to interrupt, but sometimes that accommodation is greater than in other times. I mean, we have situations, let's say, where the Congress, both houses are controlled by one party, and the president is of the same party, and they may decide that the government would be structured better than - by taking over these entities.
HSU: While it's difficult to predict how exactly the justices will rule, it appears Humphrey's Executor is headed for further erosion, if not erasure. Toward the end of the arguments, Roberts echoed Sauer's description of the 1935 decision, calling it a dried husk. Andrea Hsu, NPR News.
(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.
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