Justice Sonia Sotomayor sought clarity from the Trump administration’s solicitor general regarding the potential impact of the Supreme Court’s decision to overturn a longstanding precedent safeguarding the head of the Federal Trade Commission from dismissal without cause. Justice Samuel Alito later joined the discussion, offering further insights.

U.S. Solicitor General D. John Sauer faced a barrage of inquiries regarding President Donald Trump’s attempts to dismiss FTC Commissioner Rebecca Kelly Slaughter, a Democrat, under circumstances other than “inefficiency, neglect of duty, or malfeasance in office.” These are the stipulated grounds for removal according to the pivotal Humphrey’s Executor ruling from 1935.

The Supreme Court hearing occurred shortly after a Trump-appointed majority on the U.S. Court of Appeals for the District of Columbia Circuit concluded that the president “permissibly removed” Democratic members from the National Labor Relations Board (NLRB) and the Merit Systems Protection Board (MSPB). This decision cited the Supreme Court’s 2020 ruling in the case of Seila Law v. Consumer Financial Protection Bureau (CFPB).

The Trump administration argued that the Seila Law decision established that the restriction against removing the CFPB director for causes of “inefficiency, neglect, or malfeasance” infringes on the separation of powers. They contended that Article II of the Constitution generally grants the president the authority to oversee and, if necessary, dismiss officials who act on his behalf, particularly those wielding significant executive powers distinct from the “quasi-legislative or quasi-judicial” powers referenced in Humphrey’s Executor.

In his initial remarks on Monday, Sauer referred to Seila Law, describing Humphrey’s Executor as an “indefensible outlier” that has not aged well and now represents a “decaying husk with bold and particularly dangerous pretensions.”

“It was grievously wrong when decided” and “must be overruled,” Sauer said.

By way of background, Humphrey’s Executor was a Supreme Court case that held then-President Franklin Delano Roosevelt did not have the power to fire FTC Commissioner William Humphrey without cause after policy disagreements. Humphrey’s estate sued for back pay and succeeded in arguing that Congress expressly intended to insulate the independent fair competition agency from being unfairly subjected to the whims of the executive and, by extension, politicization and dysfunction.

On Monday, when Justice Clarence Thomas asked if a president’s reasons for firing a principal officer can be “completely arbitrary,” Sauer didn’t say no, pointing the landmark presidential immunity case Trump v. United States to state that the chief executive’s power to remove is “conclusive and preclusive” — and there’s nothing the courts can do about it.

“Any review of arguably bad reasons for the President to remove an executive officer would be subject to the political process,” Sauer said. “It would not be subject to judicial review, and certainly not subject to statutes regulating that.”

After Chief Justice John Roberts pointed out that there are “a lot of agencies” in the federal government for which it is “hard to parse whether it’s an executive function it’s engaged in or a legislative function,” raising the question of what the high court can do across the board if it ultimately agrees with the Trump administration, Sotomayor jumped in with a series of pointed questions and pronouncements about the government’s aims.

“You’re asking us to overturn a case that has been around for over 100 — nearly 100 years,” Sotomayor said, pressing Sauer to name another case the Supreme Court has decided that “fundamentally altered the structure of government.”

“Actually, since 1887 we’ve had multi-member boards, and that’s the entire government structure,” she added.

Sauer responded that the Humphrey’s Executor framework is a “distortion” of the law.

“Aren’t you asking us to distort it in a different way?” Sotomayor shot back.

“Neither the king, nor Parliament, nor prime ministers, England at the time of the founding ever had an unqualified removal power,” she said. “You’re asking us to say that at a time the founding and the Constitution doesn’t speak about this at all, where there was robust debate over this issue among legal scholars at the time, that we ourselves have said repeatedly in Humphrey’s and other cases — Weiner, even in Myers — that that those cases you mentioned did not establish this absolute power of the president.”

“You’re 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,” Sotomayor accused Sauer.

Sauer responded the there were at least nine other decisions — the “dominant line of authority” beginning in 1839 — that the Trump administration is asking the high court to “return to.”

Sotomayor was not persuaded.

“You still haven’t answered my question. Where else have we so fundamentally altered the structure of government?” she followed up.

“I think the fundamental alteration of the structure of the government was ushered in by Humphrey’s, and then the Congress kind of took Humphrey’s and ran with it in the building of the […] administrative state in the proliferation of independent agencies,” the solicitor general replied.

Sotomayor, countering that independent agencies have been around since the founding era and are not a “modern contrivance,” worried that the logic of Sauer’s arguments could put “at risk” the independence of other entities, like the Tax Court and the Federal Claims Court.

Justice Brett Kavanaugh wondered next about concerns — concerns he said he “shared” — about the “independence” of the Federal Reserve. Trump has tried to fire governor Lisa Cook on the strength of alleged, denied, and unadjudicated mortgage fraud claims.

On that point, Sauer replied that he accepts what the court has said — that the U.S. central bank is “unique and distinct” in the “historical tradition.”

With Justice Elena Kagan suggesting that there’s no end in sight to the Trump administration’s at-will firing power “logic,” Alito picked up where Sotomayor left off — and challenged her conclusions.

“It’s been suggested that if we were to rule in your favor about the Federal Trade Commission, put aside these other agencies. Just about the Federal Trade Commission, which is the issue that’s before us, the entire structure of the government would fall. You want to take a minute to address that?” Alito asked.

Referring again to Seila Law, Sauer said “these kinds of predictions of doom” have not come to pass.

“The sky did not fall,” he added. “So also, if the FTC, the MSPB, the NLRB, are made subject to political process, the political discipline of being accountable to the president, the sky will not fall. In fact, our entire government will move towards accountability to the people.”