By Daniel Wiessner
June 30 (Reuters) – The U.S. Supreme Court on Monday backed President Donald Trump’s removal of a Democratic member of the U.S. Federal Trade Commission, handing the president broad powers to fire many of his appointees to regulatory agencies at will. Trump last year fired members of several other agencies who then sued, and the Supreme Court decision seems likely to doom their lawsuits claiming they cannot be removed without cause.
CONSUMER PRODUCT SAFETY COMMISSION
Trump last year fired three Democratic commissioners from the top federal product safety watchdog, who are shielded by law from being removed absent “neglect of duty or malfeasance in office.” A federal judge ruled that Trump had violated that law and ordered their reinstatement, but the Supreme Court paused that decision pending an appeal.
The language protecting commission members is nearly identical to the law at issue in the Supreme Court case, which required “inefficiency, neglect of duty, or malfeasance in office” to remove an FTC commissioner. The court’s conservative majority said that requirement violated the separation of powers under the U.S. Constitution, and overruled a 1935 decision that had upheld the FTC law.
The Trump administration’s appeal in the consumer safety agency case is pending. The commission currently has just one member, a Republican, rendering it unable to do much of its work.
LABOR BOARDS
The court’s logic in eliminating protections for FTC commissioners also likely extends to members of federal boards overseeing federal and private-sector labor relations, experts said.
Laws shielding members of the Merit Systems Protection Board and the National Labor Relations Board from at-will removal use the same or virtually the same language to the one addressed by the Supreme Court on Monday, requiring cause such as neglect or malfeasance. A Washington, D.C.-based appeals court in December said those laws were invalid. The fired board members have appealed to the Supreme Court.
The Supreme Court on Monday said that officials who execute federal laws, like FTC commissioners, must be accountable to the president. The ex-labor board officials have argued that they were more like judges deciding individual cases that came before their agencies rather than policymakers. They could press those arguments if the Supreme Court takes up their cases, though Monday’s ruling appeared to cast doubt on whether officials with so-called “quasi-judicial” powers are immune from at-will removal.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
In another unprecedented move last year, Trump removed a pair of commissioners on the EEOC, which enforces laws banning workplace discrimination. One of them sued, and her case was paused pending the Supreme Court decision in the FTC case.
The move left the five-member panel without a quorum of at least three members for most of last year before the U.S. Senate confirmed a Trump nominee in October.
Unlike members of many other agencies who are shielded from being removed without cause, EEOC commissioners have no explicit job protections. The commissioner who sued has argued that those protections are implicit because the commission was meant to be independent from the White House. But that claim faces long odds in light of the Supreme Court’s pronouncement on Monday that “subordinates who exercise the President’s power are subject to removal by him,” experts said.
PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD
Trump last year also set his sights on an obscure five-member panel that vets U.S. surveillance programs for privacy and civil rights issues. He fired all three Democratic members, leaving a single Republican whose term expired in January of this year.
Like the EEOC, the surveillance board’s governing law does not contain explicit protections from removal for members. Lawyers for the fired members could argue that the board’s national security functions, including its regular review of classified documents, distinguish it from other agencies and justify shielding members from being fired.
The Supreme Court in a separate ruling on Monday upheld protections from removal for members of the Federal Reserve’s governing board, citing the central bank’s unique constitutional and historical status. Any attempt to carve out an exception from the FTC ruling will likely cite the Fed decision, lawyers and other experts said.
(Reporting by Daniel Wiessner in Albany, New York, Editing by Alexia Garamfalvi and David Gaffen)
