Takeaways: Supreme Court’s conservatives ready to back Trump on firings

By John Fritze, Devan Cole, CNN

(CNN) — The Supreme Court’s conservative majority signaled Monday it is ready to back President Donald Trump’s push to effectively take over independent agencies within the federal government and possibly overturn a 1935 precedent that has for decades insulated those entities from White House control.

At the center of the case is Trump’s decision in March to fire Rebecca Kelly Slaughter from the Federal Trade Commission, despite a federal law that requires presidents to show cause — such as malfeasance — before booting the leaders of agencies run by multi-member boards. The court’s decision could have sweeping implications beyond the FTC.

After two-and-a-half hours of argument, the court’s six-justice conservative bloc appeared to be aligned with Trump while the court’s three-justice liberal wing was staunchly opposed. A decision in the major separation of powers case is expected before the end of June.

Here are the key takeaways from Monday’s arguments:

Who would ‘destroy’ the government more?

Liberal and conservative justices both spent considerable time weighing what they viewed as the potential practical implications of siding with Trump – or ruling against him.

Led by Justice Sonia Sotomayor, the court’s three-justice liberal wing peppered Solicitor General D. John Sauer with questions about which agencies would be affected if Trump could fire the members – and therefore have greater control – over the Federal Trade Commission.

“You’re asking us to destroy the structure of government and to take away from Congress its ability to protect its idea that the government is better structured with some agencies that are independent,” Sotomayor told Sauer at one point early in the discussion.

But several of the court’s conservatives flipped that idea around, and pressed Slaughter’s attorney on whether Congress could just restructure Cabinet-level agencies like the Department of Interior in a way that would bar a president from firing the secretary. That, they suggested, would also upend the federal government. And why, several justices asked, couldn’t that happen under Slaughter’s theory?

“They’re not elected — as Congress and the president are — and are exercising massive power over individual liberty and billion-dollar industries,” Justice Brett Kavanaugh, a member of the court’s conservative wing, said of the independent agencies at issue in the case.

“The sky will not fall,” said Sauer, the administration’s top appellate attorney. “The entire government will move toward accountability to the people.”

‘Decaying husk’ of precedent

Trump is asking the justices to overturn a decades-old decision in which the court ruled that Congress does have the power to require a president to show cause before firing independent agency leaders.

The modern court has repeatedly chipped away at the 1935 ruling, known as Humphrey’s Executor v. US, and the dispute before the justices Monday gives them a chance to bury it. But whether they choose to do that or simply further erode it is something the conservative majority will grapple with in coming months.

Justice Neil Gorsuch at one point described the precedent as “poorly reasoned.”

Sauer got right to his request for the justices to finally kill the 90-year-old precedent as he began making his pitch to the justices, describing the case as a “decaying husk with bold and particularly dangerous pretensions” that was wreaking havoc in lower courts.

Roberts at one point also described the decision as a “dried husk.”

Indeed, lower courts have recently scrutinized the decision in different ways. Trial-level judges reviewing Trump’s firing of leaders of independent agencies this year have applied the decision in the officials’ favor. But just last week, a federal appeals court in Washington, DC, reversed two of those rulings, holding that Humphrey’s Executor didn’t shield the officials from being removed from their posts.

“It has a powerful hold on the minds of some people within our constitutional system. It certainly seems to have a powerful hold on the minds of lower courts and their decisions,” Sauer said. “The court should overrule Humphrey’s Executor explicitly.”

The Humphrey’s Executor case dates back to Franklin D. Roosevelt’s time in the White House. He fired a commissioner of the FTC in 1933. The commissioner, William Humphrey, was appointed by President Herbert Hoover. He continued to argue he was a member of the commission until his death in 1934. His estate sought to recover his salary during the period after his firing and the Supreme Court unanimously agreed that his dismissal was improper.

The precedent, and subsequent decisions, have shielded some two dozen independent agencies from presidential interference, including the Nuclear Regulatory Commission, the Federal Communications Commission and the National Transportation Safety Board, among others.

Trump immunity decision

The Supreme Court’s 6-3 decision last year granting the president immunity from criminal prosecution increasingly became a focus of the case – and was repeatedly raised during the arguments Monday. In that decision, the court was weighing whether Trump’s interaction with Justice Department officials fell within the kind of presidential actions that would be covered by immunity.

“The president’s power to remove ‘executive officers of the United States whom he has appointed’ may not be regulated by Congress or reviewed by the courts,” Roberts wrote in that decision. It was a point Sauer focused on almost immediately during a back-and-forth with conservative Justice Clarence Thomas.

At one point, Justice Neil Gorsuch leaned into Slaughter’s lawyer, Amit Agarwal, on the issue. Agarwal argued the court’s language in the immunity decision doesn’t cover agencies like the FTC, which is pursuing civil matters — compared to the Justice Department, which is pursuing criminal cases.

“So that means if the government wants to bring a misdemeanor, that person has to be reportable to the president, but if the government wants to bring ruinous fines and penalties and injunctions that person doesn’t?” an incredulous Gorsuch asked.

“You’re building off of two words from Trump v. United States and putting a gloss on it that I’m not familiar with,” he said.

Looming Fed fight

Looming large over Monday’s arguments is Trump’s attempt to exert more control over the Federal Reserve.

Earlier this year, the president fired Federal Reserve Board Governor Lisa Cook over unproven allegations of mortgage fraud, leading her to sue. The high court allowed her to stay in the job for now and the justices have set arguments next month in that case.

In separate cases concerning independent agencies the court went out of its way to distinguish the central bank from those agencies, signaling that a majority of justices aren’t ready to sign on to any attempt by Trump to meddle with the Fed.

And at least one member of the court’s conservative wing made clear on Monday that he was sympathetic to arguments pushed by Slaughter that Trump’s position in her case would undermine the Fed’s independence.

“They have concerns about that and I share those concerns,” said Kavanaugh, a Trump appointee.

In response, Sauer tried to steer the court away from the notion that the administration was taking aim at the legal guardrails around the Fed, but liberal Justice Elena Kagan swiftly pushed back, saying his “logic” would sweep in “a great many things.”

“So once you’re down this road, it’s a little bit hard to see how you stop,” Kagan said. “It does not seem as though there’s a stopping point.”

Kavanaugh: ‘Real doubts’ with one Trump argument

Much of the debate was about the interplay between two branches of the federal government — the executive and the legislative. But lurking in the case is a question about the power of the judicial branch to engage in legal disputes when a government official is fired, and to reinstate them. The Trump administration argues courts do not have the authority to bring those officials back from exile.

One of the questions the court was asked to answer is whether that broad position is true. If it is, it would have sweeping practical implications, allowing a president to fire officials and keep them removed from power, even if a court later decides that the firing was illegal.

Humphrey’s Executor, after all, was about a fired official’s estate being able to collect back wages, not to be reinstated.

But there seemed to be limited appetite for that broader position on Monday. Kavanaugh, in particular, seemed dismissive.

“I have some real doubts about that argument,” Kavanaugh said, who then added it would amount to an “end run” around the government’s position that some independent agencies — like the Federal Reserve — could remain protected from presidential control.

“That strikes me as really destroying the categories that you had identified as potential exceptions,” he said.

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