Left: Special counsel Jack Smith speaks about the indictment of former President Donald Trump on Tuesday, Aug. 1, 2023, at a Department of Justice press event in Washington (AP Photo/Jacquelyn Martin). Center: Supreme Court Justice Elena Kagan stands in front of the casket of retired Supreme Court Justice Sandra Day O’Connor during a service at the Supreme Court in Washington on Monday, Dec. 18, 2023. (AP Photo/Jacquelyn Martin, Pool). Right: President Donald Trump talks to reporters in the Oval Office at the White House on Tuesday, Feb. 11, 2025, in Washington, D.C. (Photo/Alex Brandon).
In late 2023, near the Christmas season, former special counsel Jack Smith appealed to the U.S. Supreme Court, urging it to take the unusual step of bypassing the appellate court to quickly rule on Donald Trump’s claims of “absolute immunity.” He implored the high court to treat the Jan. 6 prosecution of the then-presidential candidate with the same urgency as Richard Nixon’s Watergate case.
At that time, SCOTUS decided to delay any decision for six months, prolonging the matter closer to the 2024 elections and eventually ruled in favor of Trump. This decision had significant ramifications on both of Trump’s dismissed federal cases and the New York hush-money case, which concluded with 34 felony convictions.
However, on Monday, the conservative majority eagerly seized the opportunity to potentially challenge a 90-year-old precedent. They granted Trump certiorari before judgment regarding his bid to assert executive control over independent agencies by firing the only Democratic FTC commissioner “without cause,” which greatly displeased the court’s liberal minority.
As reported by Law&Crime in September, Chief Justice John Roberts placed the 1935 precedent known as Humphrey’s Executor at risk. Through a “shadow docket” decision, he paused the U.S. Court of Appeals for the D.C. Circuit’s reinstatement of Rebecca Kelly Slaughter, stirring conversation among legal experts.
At that time, several legal analysts noted that this action had “effectively overruled” the precedent set during the presidency of Franklin Delano Roosevelt. This precedent, established after FDR dismissed FTC commissioner William Humphrey without cause due to policy disagreements, defined “inefficiency, neglect of duty, or malfeasance in office” as legitimate reasons for removal.
And now, just a couple of weeks later, SCOTUS has agreed to grant Trump’s application for a stay, to fast-track the case through certiorari before judgment, and to take up the question of whether “statutory removal protections” for FTC commissioners like Slaughter are violative of the separation of powers, which would mean Humphrey’s Executor very well may be “overruled” sometime after oral arguments are heard this December.
Rebecca Kelly Slaughter (FTC photo).
The court’s division on the issue is already stark, as articulated in Justice Elena Kagan’s dissent, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson.
For SCOTUS’ liberal wing, the stakes could not be higher for the insulation of certain independent agencies from politicization in our government — over which, they assert, Trump has effectively taken control regardless of congressional intent or historical practice and with the help of the conservative majority’s “shadow docket” rulings.
“On top of granting certiorari before judgment in this case, the Court today issues a stay enabling the President to immediately discharge, without any cause, a member of the Federal Trade Commission. That stay, granted on our emergency docket, is just the latest in a series,” Kagan began. “Earlier this year, the same majority, by the same mechanism, permitted the President to fire without cause members of the National Labor Relations Board, the Merits Systems Protection Board, and the Consumer Product Safety Commission.”
Even though “everyone agrees” that Congress “prohibited each of those presidential removals,” and even though everyone knows Humphrey’s Executor is “existing law” until it is overruled, the majority has “handed full control of all those agencies to the President” anyway, Kagan continued.
“He may now remove—so says the majority, though Congress said differently—any member he wishes, for any reason or no reason at all. And he may thereby extinguish the agencies’ bipartisanship and independence,” Kagan explained.
The dissent concluded by coming close to predicting that Humphrey’s Executor will be overturned, accusing the conservative majority along the way of abusing the emergency docket to empower Trump:
The majority may be raring to take that action, as its grant of certiorari before judgment suggests. But until the deed is done, Humphrey’s controls, and prevents the majority from giving the President the unlimited removal power Congress denied him. Because the majority’s stay does just that, I respectfully dissent. Our emergency docket should never be used, as it has been this year, to permit what our own precedent bars. Still more, it should not be used, as it also has been, to transfer government authority from Congress to the President, and thus to reshape the Nation’s separation of powers.
