As expected, the Supreme Court today ruled by a vote of 6 to 3 (in Trump v. Slaughter) that the statutory provision that allows the president to remove members of the Federal Trade Commission only for “inefficiency, neglect of duty, or malfeasance in office” violates the Constitution’s separation of powers. Chief Justice Roberts wrote the majority opinion. Justice Sotomayor, joined by Justices Kagan and Jackson, dissented.
On a first read, the majority opinion strikes me as the Chief at his best—and that’s a very high standard: crystalline prose, rigorous logic, deft discussion of history, nice turns of phrase (“no ifs, ands, or quasis about it”). I encourage you to read it on your own.
I will limit myself here to stating what the ruling means—and what it leaves open.
In 1935, the Court ruled in Humphrey’s Executor v. United States that the president’s ordinary authority to remove executive-branch officers did not apply to members of the FTC because the FTC’s duties formed “no part of the executive power” and had duties that were instead “quasi-judicial and quasi-executive.” The Chief’s opinion today explains that Humphrey’s “has not withstood the test of time,” that the FTC’s activities “fall well within the heartland of executive power,” and that, to the extent that anything remains of Humphrey’s, it is overruled.
The ruling means that the president has unrestricted power to remove the members of the Federal Trade Commission. The logic of the ruling also extends to nearly all other so-called “independent agencies” that exercise executive power. That would include, for example, the Federal Communications Commission, the Federal Election Commission, the National Labor Relations Board, and the Securities and Exchange Commission.
The Chief observes, however, that the Court has “left open the possibility that some functions traditionally handled outside the Executive Branch” may be exercised by officers not subject to at-will removal, and he cites the Federal Reserve as one example “of an entity that may have such a unique role.” As I’ve pointed out in my account of the Chief’s opinion today in Trump v. Cook, the Court in fact determined in that case that the for-cause removal restriction on members of the Fed’s board of governors is constitutionally permissible.
The Chief also “leave[s] … for another day” the “permissibility of tenure protections for the judges of ‘non-Article III courts,’ such as the Tax Court and the Court of Federal Claims.”