Allowing President Donald Trump to remove independent agency members undermines the legal basis for the independence of the Federal Reserve, lawyers for the Federal Trade Commission’s sole remaining Democrat told the US Supreme Court Monday.

Attorneys for FTC Commissioner Rebecca Kelly Slaughter made that argument in a filing that seeks to allow her to remain in her post while the high court hears an appeal by the Trump administration. The president is seeking to overturn a 90-year-old Supreme Court decision that let Congress set up independent agencies and shield their leaders from being fired.

The federal law that created the FTC says commissioners can be removed only for “inefficiency, neglect of duty, or malfeasance in office,” which the Supreme Court upheld as constitutional in a 1935 ruling known as Humphrey’s Executor. Congress used that same ruling to create the Fed’s modern structure and insulate Federal Reserve governors from removal, except for cause. 

“The foundational ‘principle that every right, when withheld, must have a remedy,’ applies regardless of whether the illegally removed officer is a federal judge, the chairman of the Federal Reserve, a justice of the peace, or a Commissioner of the FTC,” the lawyers said. “Because lower courts have (correctly) understood Humphrey’s Executor to squarely control questions pertaining to the for-cause removal provision of the FTC Act, only this court can provide further authoritative guidance.”

The dispute comes amid months of criticism by the Trump administration of the Fed’s reluctance to lower interest rates. It also coincides with Trump’s effort to push out Federal Reserve Governor Lisa Cook for alleged mortgage fraud, which the president maintains creates sufficient cause for her dismissal. In the FTC case, Trump contends he has the constitutional right to fire Slaughter for any reason.

Slaughter’s attempted removal represents the most direct challenge yet to the Humphrey’s Executor ruling, which stemmed from Democratic President Franklin Delano Roosevelt’s firing of a Republican FTC commissioner. 

Conservatives have long opposed Humphrey’s Executor as undermining the Constitution’s separation of powers, and they’ve gained traction in recent years. The Supreme Court ruled in 2020 that the president could fire the director of the Consumer Financial Protection Bureau, saying such a powerful executive branch figure has to be accountable to the president.

More recently, the Supreme Court has let Trump remove members of the National Labor Relations Board, Merit Systems Protection Board and the Consumer Product Safety Commission. The court suggested along the way that Trump’s power wouldn’t extend to firing Federal Reserve Chair Jerome Powell — at least in the absence of a legitimate reason like misconduct.

The Trump administration told the Supreme Court in the FTC case that the US Court of Appeals for the District of Columbia had flouted the high court’s earlier rulings. 

Defenders of Humphrey’s Executor say the Constitution gives Congress the flexibility to create agencies that rely on expert leadership and are independent from the White House.

The case is Trump v. Slaughter, 25A264.