SCOTUS Signals That It Wouldn't Block Gomez's Firing

“It doesn’t look like the Supreme Court is going to stop him from doing it,” said American University administrative law professor Jeffrey Lubbers. “The message that everybody seems to be taking from this order ... is that the independent agencies -- perhaps other than purely adjudicatory agencies and [the Federal Reserve] -- are not likely to survive constitutional challenges.”

Thursday’s SCOTUS order in Trump v. Wilcox granted the White House’s request for a stay of two district court decisions that enjoined Trump from firing members of the National Labor Relations Board and Merit Systems Protection Board (MSPB). The two-page order was approved by all the conservative justices and issued in the court’s emergency docket. Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson dissented in an eight-page opinion.

In a Friday filing at the U.S. District Court for the District of Columbia, the White House said the order suggests that removed FTC Commissioners Rebecca Kelly Slaughter and Alvaro Bedoya shouldn’t be reinstated. In March, Slaughter and Bedoya sued Trump, the FTC and Chairman Andrew Ferguson over their “illegal” firings, citing protections established by the high court’s unanimous 1935 decision in Humphrey’s Executor (see 2503270056).

The SCOTUS order acknowledged that federal statutes bar the president from firing officers without cause and that “no qualifying cause was given” in the board firings. But because the Constitution “vests the executive power in the President, ... he may remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions recognized by our precedents,” the court said. “The stay reflects our judgment that the Government is likely to show that both the NLRB and MSPB exercise considerable executive power.”

The court said a stay will allow justices to hear full briefing and argument on the question. “The stay also reflects our judgment that the Government faces greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty.”

The order suggests that a majority of justices won’t uphold the constitutionality of agencies that have executive powers and won’t prevent the White House from firing members of multimember commissions, Lubbers said. Narrow, adjudicatory agencies such as the Federal Mine Safety and Health Review Commission may remain independent under an eventual SCOTUS ruling, but that's unlikely to be the case for agencies with broad authority like the FCC and FTC, Lubbers said.

“The current President believes that Humphrey’s should be either overruled or confined,” Kagan wrote in the liberal justices’ dissent. “And he has chosen to act on that belief -- really, to take the law into his own hands. Not since the 1950s (or even before) has a President, without a legitimate reason, tried to remove an officer from a classic independent agency.” Congress protected such board members from presidential removal without cause, and Humphrey’s “instructs that Congress can do so without offending the Constitution,” Kagan wrote: To fire these officials, the president “needs good cause, which he admits he does not have. The only way out of that box is to upend Humphrey’s,” which the decision doesn't do.

It was already widely expected "that Humphrey’s Executor likely would be overruled, or sharply curtailed,” said Free State Foundation President Randolph May. After Thursday's order, "I don’t see anything that would protect FCC commissioners from dismissal at will any more than members of the NLRB or MSPB, or, for that matter, many other multimember commission members.”

Tech Freedom President Berin Szoka said “there was never any chance the court would stop Trump from removing FCC commissioners.” Unlike the statutes that created the FTC and other independent agencies, the Communications Act doesn’t require that the White House demonstrate a cause for removing an FCC commissioner, Szoka pointed out.

FCC Commissioner Anna Gomez, soon to be the FCC’s lone Democrat (see 2505220043), has said she will oppose White House attempts to remove her. Chairman Brendan Carr was asked at a press conference Thursday if he would support or recommend Gomez’s firing but declined to comment.

Expect the Supreme Court to ultimately rule that Humphrey’s Executor doesn’t apply to modern agencies wielding significant executive power, said Devin Watkins, an attorney at the Competitive Enterprise Institute, which filed in support of Trump in Wilcox. “All of this foundationally is about the fact that an executive power is vested in the president, personally,” he said. “That’s directly from the Constitution.”

Lubbers said that while SCOTUS seems poised to allow Trump to freely fire independent commissioners, most of the agencies that would be affected by such a ruling are already fully under the control of leaders loyal to the administration. Carr has said that Trump’s plans are his No. 1 priority as chairman. Trump “has got control of the ones he wants already,” Lubbers noted.

Szoka said he expects Gomez to be fired, even though there’s little that a minority-party FCC commissioner can do to ultimately obstruct the majority. “He’ll fire her simply because he can and because he cannot tolerate the slightest bit of dissent or criticism,” Szoka said. “Anyone who thinks otherwise simply hasn’t been paying attention.” The Communications Act doesn't prevent the FCC from operating with three Republican commissioners and no members from the minority, he added.

“Whether or not President Trump actually dismisses any FCC commissioner, it makes sense to start thinking right now about whether the agency should be reconfigured to comport with the likely new constitutional reality,” wrote May. The FCC’s policymaking functions could be transferred to the executive branch, possibly NTIA, while adjudicative functions could remain with the multimember commission, he said. “The Communications Act is long overdue for an update in any event to jettison the current outdated ’stovepipe’ model and the over-reliance on the amorphous 'public interest’ doctrine.”

Separating the enforcement and adjudicatory functions may not be enough, Szoka said. “It’s hard to know” where an eventual SCOTUS ruling on agency independence will draw the line.