Trump v. Slaughter is not an employment law case, at least not in the traditional sense. Yet it remains the most important case of the year to shape the future of the employment law landscape, because it weakens the legal foundation for independent agencies, like the EEOC, NLRB, the DOL, OSHA, and others, whose workplace regulation is likely to become much more directly tied to presidential control than in years past.
A few months after taking office, President Doanld Trump fired Rebecca Slaughter, one of the commissioners of the Federal Trade Commission (FTC), the government agency tasked with protecting consumers by preventing fraudulent business practices, among other things (remember their attempted ban on non-competes two years ago?). Although the FTC’s removal provision only allows the President to fire an FTC commissioner for “inefficiency, neglect of duty, or malfeasance in office,” i.e., for cause, President Trump fired Ms. Slaughter simply because allowing her to remain would be “inconsistent with the administration’s priorities,” which is about as mealy-mouthed and not for-cause a termination as it gets.
Slaughter filed suit shortly thereafter in district court, and the case made its way up to the Supreme Court to decide the question: Is the FTC removal provision unconstitutional under Article II of the Constitution, which vests executive power in the President? Or, put differently, would President Trump’s inability to fire her at-will and without cause constitute a limitation on his constitutionally granted executive power to “take care that the laws be faithfully executed”?
The main basis for Slaughter’s case was a 1935 precedent called Humphrey’s Executor, which followed a similar fact pattern. In 1933, President Roosevelt fired William Humphrey, an FTC commissioner, without cause (or, in his words, because “the aims and purposes of the Administration with respect to the work of the Commission can be carried out most effectively with personnel of my own selection”). Humphrey died shortly thereafter, and his estate filed suit to recover the wages it said he was owed.
Justice George Sutherland, writing for the Supreme Court, upheld the words of the removal provision, and maintained that the removal law was not an unconstitutional interference with the President’s executive power, because the FTC was not, in Sutherland’s view, “an arm of the executive,” but instead “an administrative body … to carry into effect legislative policies.” The argument, in layman’s terms, was that the FTC’s work was not purely executive (and therefore under the President’s exclusive control), but quasi-legislative and quasi-judicial as well, and therefore insulated from the President’s control.
In Slaughter, the Supreme Court rejected this premise. The modern FTC does not merely advise Congress, conduct studies, or perform neutral expert functions, but instead promulgates substantive rules, investigates alleged violations, and files lawsuits in federal court on behalf of the United States. That is the work of executing the law, and calling those functions quasi-something else does not remove them from Article II jurisdiction.
As is typical of these sorts of cases, the political pundits are divided, with some shouting about the power grab that this opinion represents, and others claiming a restoration of what the Constitution originally intended.
Once you filter through all the noise, two salient points remain. First, the rule is party-neutral. It will have the same effect in the current presidential administration and in future administrations, regardless of political parties. Anyone upset because this happened during the Trump Administration, but who would be fine if this happened under another, is being disingenuous.
But more, this opinion comports with basic Constitutional law and common sense. Article II vests executive power in a single President, and that power becomes meaningless if the President cannot meaningfully “take Care that the Laws be faithfully executed” if he must depend on Congress to impeach officers who fail to uphold his priorities. That executive power must, by necessity, enable the President to remove agency heads who oppose the agenda he was elected to enact.
Slaughter also represents a major blow to what some have called the “fourth branch of government”: the alphabet soup of agencies that wield significant power but remain unaccountable and un-fireable by the president. Slaughter opens the door for the President to take similar actions against other executives of other agencies.
And that is precisely where this opinion will come to matter the most to employers. If the FTC’s combination of enforcement, adjudication, and policymaking authority counts as executive power, it would be hard to draw a line between that and, say, the National Labor Relations Board (NLRB), the agency that issues rules and adjudication around both union and non-union employers. The same is true for the Equal Employment Opportunity Commission (EEOC), which enforces federal anti-discrimination law (and which, incidentally, was the subject of a DOJ Opinion early last month about how many of its rules violate the Civil Rights Act of 1964 - a topic deserving its own article), and the Department of Labor.
Slaughter may make agencies more accountable, but accountability is not the same thing as stability. And the deeper problem, which Slaughter does not address, is whether these agencies should be given this much quasi-legislative and quasi-judicial power in the first place.
For employers, the bottom line is this: you do not need to rewrite your policies tomorrow because of Slaughter. But expect stormy waters ahead, as the agency interpretations are likely to become more partisan than before.
And if you are looking to respond to an EEOC claim, draft policies in accordance with the NLRA, figure out your forthcoming Maryland FAMLI obligations, shoot an email to aj@luchanskylaw.com and we’ll take care of you.
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