Obama-Appointed Judges Block Trump From Firing FTC Commissioner

A federal appeals court declined Tuesday to allow President Donald Trump to fire a Federal Trade Commission (FTC) commissioner.

In a 2-1 ruling, the panel left in place a decision by U.S. District Court Judge Loren AliKhan, a Biden appointee, reinstating Democratic FTC Commissioner Rebecca Slaughter, who Trump fired along with the other Democratic commissioner in March.

“The government has no likelihood of success on appeal given controlling and directly on point Supreme Court precedent,” Judges Patricia Millett and Cornealia Pillard, both Obama appointees, held.

Ninety years ago, the Supreme Court affirmed protections that prevent removing leaders of “independent” agencies like the FTC without cause in Humphrey’s Executor v. United States. The ruling, which the panel cited, has been challenged by the Trump administration through several decisions to fire federal officials. 

The Supreme Court let Trump move forward with firing members of the Merit Systems Protection Board and National Labor Relations Board in May, as well as members of the Consumer Product Safety Commission (CPSC) in July.

Trump fired on Aug. 25 Federal Reserve Board Gov. Lisa Cook amid mortgage fraud allegations. Cook sued shortly after.

“To grant a stay would be to defy the Supreme Court’s decisions that bind our judgments,” the panel found on Tuesday. “That we will not do.”

Judge Neomi Rao, a Trump appointee, suggested in a dissent that her colleagues were actually ignoring the Supreme Court’s recent emergency docket rulings, noting the justices stopped lower court orders from taking effect in “two virtually identical cases.”

“Following the Supreme Court’s direction, the district court’s far-reaching injunction must be stayed,” Rao wrote. “An injunction ordering reinstatement of an officer removed by the President likely exceeds the Article III judicial power and encroaches on the President’s exercise of the Article II executive power.”

In its July decision allowing Trump to fire CPSC members, the Supreme Court majority wrote that its emergency docket decisions should inform the lower courts, though they are not “conclusive as to the merits.”

Justice Brett Kavanaugh, in a concurring opinion, suggested the Supreme Court should have taken up the case on the merits to consider reversing Humphrey’s Executor and avoid confusion.

“When an emergency application turns on whether this Court will narrow or overrule a precedent, and there is at least a fair prospect (not certainty, but at least some reasonable prospect) that we will do so, the better practice often may be to both grant a stay and grant certiorari before judgment,” Kavanaugh wrote in a concurring opinion.

The White House didn’t immediately respond to a request for comment.