The Supreme Court should abandon a 90-year-old precedent and
decide that President Trump should be permitted to fire Rebecca
Slaughter from the Federal Trade Commission without cause,
Solicitor General D. John Sauer told the Court on December 8 during oral
arguments.

"I think broad delegations to unaccountable independent
agencies raise enormous constitutional and real-world problems for
individual liberty," Justice Brett Kavanaugh, said. Although,
as we address below, Justice Kavanaugh expressed concern about the
implications for the Federal Reserve Board if the Court determines
that a President can fire an FTC Commissioner without cause.

Justice Sonia Sotomayor said that the Trump Administration is
"asking us to destroy the structure of government and to take
away from Congress its ability to protect its idea that the
government is better structured with some agencies that are
independent."

After being dismissed from the FTC without cause earlier this
year, Alvaro Bedoya and Slaughter promptly 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, citing the 1935 Supreme Court ruling,
Humphrey's Executor, in which the court upheld the
constitutionality of the for-cause removal standard applicable to
FTC commissioners. (Bedoya subsequently resigned from the
commission and no longer is part of the suit.)

Trump has attempted to fire Democrats from several other boards
and commissions, including the National Labor Relations Board, the
Merit Systems Protection Board, and the National Credit Union
Administration. Several of the ousted board and commission members
have likewise filed suit.

Judge Loren AliKhan of the U.S. District Court of the District
of Columbia ruled that Slaughter had been illegally fired, as did
two of the judges on the U.S. Court of Appeals for the District of
Columbia's three-judge panel. However, Chief Justice John
Roberts issued a stay of the appellate court's order.

In 1935, in Humphrey's the Court ruled that FTC
members could only be fired for cause. Attorneys for Slaughter
cited that precedent in arguing that she could only be removed for
cause.

However, Chief Justice John Roberts said that a great deal of
time has passed since that decision. He referred to
Humphrey's as a "dried husk," adding that
the current FTC bears little resemblance to the FTC that existed
when Humphrey's was decided.

Humphrey's was "addressing an agency that had
very little, if any executive power," Roberts added.