President Trump's attempt to fire a Democratic member of the Federal Trade Commission was given a boost today, as Supreme Court Chief Justice John Roberts granted a stay that temporarily blocks a lower-court ruling against Trump.
The Supreme Court hasn't ruled on the merits of the case. Today's order from Roberts stayed the lower-court ruling "pending further order of The Chief Justice or of the Court." Roberts set a September 15 deadline for Rebecca Kelly Slaughter, the Democrat who was fired from the FTC, to file a response to the government's motion for a longer-term stay.
Slaughter beat Trump last week in the US Court of Appeals for the District of Columbia Circuit, which affirmed a District Court ruling that Trump violated US law and Supreme Court precedent with her firing. Slaughter was back in her office temporarily. Her name was re-added to the FTC website's list of commissioners after last week's ruling, but was off the list again as of today.
The Department of Justice submitted an application to stay the judgment along with a request for an administrative stay that would put the lower-court ruling on hold while the Supreme Court considers the stay application. Slaughter filed an opposition to the request for an administrative stay and now has until next week to submit a more thorough response.
Trump fired Slaughter along with fellow Democrat Alvaro Bedoya in March, leaving the FTC with only Republican commissioners. They both challenged the firings, but Bedoya's claims were dismissed as moot in July after he decided to formally resign and seek other employment.
1935 Supreme Court is key precedent
The key precedent in the case is Humphrey's Executor v. United States, a 1935 ruling in which the Supreme Court unanimously held that the president can only remove FTC commissioners for inefficiency, neglect of duty, or malfeasance in office. Trump's termination notices to Slaughter and Bedoya said they were being fired simply because their presence on the commission "is inconsistent with my Administration's priorities."
The Trump administration argues that Humphrey's Executor shouldn't apply to the current version of the FTC because it exercises significant executive power. But the appeals court, in a 2–1 ruling, said "the present-day Commission exercises the same powers that the Court understood it to have in 1935 when Humphrey's Executor was decided."
"The government has no likelihood of success on appeal given controlling and directly on point Supreme Court precedent," the panel majority said.
But while the government was found to have no likelihood of success in the DC Circuit appeals court, its chances are presumably much better in the Supreme Court. The Supreme Court previously stayed District Court decisions in cases involving Trump's removal of Democrats from the National Labor Relations Board, the Merit Systems Protection Board, and the Consumer Product Safety Commission.
In a 2020 decision involving the Consumer Financial Protection Bureau, the court said in a footnote that its 1935 "conclusion that the FTC did not exercise executive power has not withstood the test of time." If the Supreme Court ultimately rules in favor of Trump, it could throw out the Humphrey's Executor ruling or clarify it in a way that makes it inapplicable to the FTC.
But Humphrey's Executor is still a binding precedent, Slaughter's opposition to the administrative stay said. "This Court should not grant an administrative stay where the court below simply 'follow[ed] the case which directly controls,' as it was required to do," the Slaughter filing said.
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