The Supreme Court agreed Monday to formally consider overruling its 90-year-old precedent that enables Congress to provide certain agencies with a degree of independence from the White House, a major test of President Trump’s expansive assertion of presidential power.
The justices are set to review Trump’s contention that he can fire independent agency leaders at will, an argument that casts their for-cause removal protections as infringing on the separation of powers.

Oral arguments are set for December, with a decision expected by next summer. 

Until then, the court’s order temporarily greenlights Trump’s firing of Federal Trade Commission (FTC) member Rebecca Slaughter over the dissents of the court’s three liberal justices. 

The majority did not explain their reasoning, but Justice Elena Kagan wrote a brief dissent criticizing her colleagues for the emergency intervention.

“Our emergency docket should never be used, as it has been this year, to permit what our own precedent bars,” Kagan wrote, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson.  

“Still more, it should not be used, as it also has been, to transfer government authority from Congress to the President, and thus to reshape the Nation’s separation of powers,” Kagan continued. 

In taking up the case, the justices agreed to formally reconsider the Supreme Court’s 1935 decision, Humphrey’s Executor v. United States, that upheld the FTC’s removal protections as constitutional. Ever since, it has served as the cornerstone of legal justification for other independent agencies.

The high court’s conservative majority has taken steps to limit the reach of Humphrey’s Executor in recent years, leading to doubts about the precedent’s future.

Those doubts have only increased in Trump’s second term as he seeks to shatter removal protections and assert authority to hire and fire nearly anyone in the executive branch at will.

The court previously allowed Trump’s similar firings of National Labor Relations Board (NLRB) member Gwynne Wilcox and Merit Systems Protection Board (MSPB) member Cathy Harris to temporarily take effect. 

But the justices sent those cases back to lower courts, resisting the administration’s urgings to take up the broader legal issues on the court’s normal docket until it again raised the request in its latest appeal involving the FTC. 

“This Court’s resolution of this suit could control many of those cases and provide important guidance in others,” Solicitor General D. John Sauer wrote in court filings. 

A Democrat appointed to the FTC in 2018, Slaughter sued after Trump attempted to fire her in March. 

Federal law requires “inefficiency, neglect of duty, or malfeasance” for the president remove an FTC commissioner.  

Trump does not purport to have cause. Instead, his administration contends the protections violate the separation of powers by restricting Trump’s ability to fire executive branch officials. The administration also argues courts have no power to reinstate FTC commissioners.  

The case reached the Supreme Court’s emergency docket after the U.S. Court of Appeals for the District of Columbia Circuit kept intact a federal district judge’s July order reinstating Slaughter as the litigation proceeds. 

 Chief Justice John Roberts allowed the firing to move forward until the Supreme Court decided what to do.

Slaughter’s lawyers maintain that the lower courts got it right and opposed any emergency intervention. But they acquiesced in the administration’s request that the Supreme Court  should take up the case without delay. 

“It is of imperative public importance that any doubts concerning the constitutionality of traditional independent agencies be resolved promptly,” Slaughter’s lawyers wrote in court filings. 

It caught the attention of the fired NLRB and MSPB members.  

They responded by filing conditional petitions urging the Supreme Court to take up their cases, too, if the justices wanted to move forward. The court refused to do so, instead only agreeing to directly review Slaughter’s case. 

Updated 3:47 p.m.