The Supreme Court, to its credit, will be addressing one of the most constitutionally dubious precedents still on the books during its forthcoming term. On Monday, in Trump v. Slaughter, the Court stayed the D.C. district court’s order preventing the removal of an FTC commissioner fired by President Trump, granted certiorari before judgment, and agreed to tackle head-on whether Humphrey’s Executor v. United States (1935) should be overruled. It has been apparent for much of this year that the Court’s regrettable precedent may not last much longer. The Justice Department, to its credit, made clear in February it would seek to overrule the case. While the Court previously struck down statutory bars to presidential removal in Free Enterprise Fund v. Public Company Accounting Oversight Board (2010), Seila Law LLC v. Consumer Financial Protection Bureau (2020), and Collins v. Yellen (2021), Slaughter involves the FTC, the same agency involved in the 1935 precedent. So the question of whether to overrule is perfectly teed up.
The Court’s handling of the administration’s stay application is the way forward. Many of the cases filling up the emergency docket lately turn on the ongoing validity of Humphrey’s Executor. The precedent has been eroding for years, and the Court is taking action to resolve the issue on the merits instead of allowing years of lingering confusion. The majority’s grant of certiorari before judgment sends a clear signal that they recognize the urgency of settling this matter once and for all.
Meanwhile, the three liberal justices, who dissented from the Court’s order, complain that the Court will be addressing the issue head-on. Here’s some advice for them. Pick your poison: either complain that the majority is deciding cases in the emergency docket or complain that they are hearing them on the merits. You can’t have it both ways.
Justice Kagan concluded in her dissenting opinion: “The majority may be raring to” overturn Humphrey’s Executor, “as its grant of certiorari before judgment suggests.” Let’s hope so!
In addition to the question of separation of powers and whether to overrule, the Court will consider “[w]hether a federal court may prevent a person’s removal from public office, either through relief at equity or at law.” The district court did not merely declare the FTC commissioner’s removal unlawful. It issued injunctive relief restoring her to office and prohibiting interference with her duties, a judicial intrusion into core executive powers that Judge Neomi Rao, dissenting from the D.C. Circuit’s refusal to stay the district court, called “unprecedented.” The lower court went far beyond the traditional remedy of backpay that was at issue in Humphrey’s Executor itself. Rao pointed out that the district court’s injunction would have constituted judicial overreach even if we were to assume that Slaughter was unlawfully removed.
As it stands, the administration is likely to prevail on both questions. And the Court is now in a great position to overturn another blight on constitutional law.