Appeals court rejects

Appeals court rejects Trump’s bid to fire Biden-appointed FTC member

In a 2-1 ruling, a D.C. Circuit panel ordered Rebecca Kelly Slaughter reinstated to her job.

By Josh Gerstein and Kyle Cheney

A federal appeals court has reinstated a Biden appointee to the Federal Trade Commission despite President Donald Trump’s attempt to fire her.

A D.C. Circuit Court of Appeals panel split, 2-1, Tuesday as it restored a lower-court order that found FTC member Rebecca Kelly Slaughter was entitled to continue to serve on the board because federal law says commissioners can only be removed for “inefficiency, neglect of duty, or malfeasance in office.”

Trump moved to fire Slaughter in March without citing any reason.

Judges Patricia Millett and Cornelia Pillard, both Obama appointees, joined in the ruling reinstating Slaughter. Judge Neomi Rao, a Trump appointee, dissented.

The battle over Slaughter’s seat is one of many lawsuits challenging Trump’s efforts to fire Democrat-appointed leaders of federal agencies that Congress historically has tried to insulate from political pressure. Most recently, Trump’s firing spree extended to a board member of the Federal Reserve.

In emergency appeals in some of those lawsuits, the Supreme Court has repeatedly endorsed Trump’s authority to summarily remove officials who carry out significant executive branch functions — even when Congress has sought to protect them from removal without cause. But the appeals court majority said in its new decision that the FTC was a special case.

That’s because the Supreme Court itself endorsed protections against summary removal for FTC commissioners in a unanimous 1935 opinion known as Humphrey’s Executor.

“Over the ensuing decades — and fully informed of the substantial executive power exercised by the Commission — the Supreme Court has repeatedly and expressly left Humphrey’s Executor in place, and so precluded Presidents from removing Commissioners at will,” Millett and Pillard concluded. “To grant a stay would be to defy the Supreme Court’s decisions that bind our judgments. That we will not do.”

Many legal scholars expect the Supreme Court to eventually overturn Humphrey’s Executor. Conservative justices have repeatedly signaled their view that the president is entitled under the Constitution to assert near total control of the executive branch. In recent years, the high court has steadily cut back the number of positions that appeared protected by the 90-year-old ruling.

However, the precedent remains on the books, binding lower court judges to follow it.

In a dissent, Rao said that despite the Humphrey’s Executor precedent, the courts considering the matter should have permitted Trump to remove Slaughter while the litigation was pending. Rao said that federal courts “likely” lack the power to reinstate an executive branch official fired by the president. Slaughter could seek back pay later if her removal is deemed unlawful, Rao said.

Rao said the appeals court was obliged to follow the analysis the Supreme Court undertook in recent emergency rulings allowing other Trump firings to proceed.

“We must follow the Supreme Court’s conclusion that an injunction reinstating an officer the President has removed harms the government by intruding on the President’s power and responsibility over the Executive Branch,” she wrote.

U.S. District Judge Loren AliKhan, a Biden appointee based in Washington, ruled in July that Trump’s firing of Slaughter was illegal.

Another Biden-appointed FTC commissioner, Alvaro Bedoya, was also fired by Trump and initially joined Slaughter in the legal challenge to their dismissal. However, Bedoya formally resigned from the commission in June, saying he planned to seek work in the private sector.