Today, the U.S. Supreme Court is hearing arguments in the case of Slaughter v. Trump. At issue is the President’s authority to fire, at-will and for political reasons, any appointee within the government, including members of Senate-confirmed Commissions, where the underlying statute limits the President’s authority.
Although today’s argument concerns the ability to fire members of the Federal Trade Commission, it will set precedent for numerous other independent Commissions, including those that decide whistleblower cases.
According to Stephen M. Kohn, the Chairman of the Board of the National Whistleblower Center (NWC), and co-author of the amicus brief filed by the NWC, “this case could have a radically devastating impact on whistleblowers.”
“The entire framework of protecting federal employee whistleblowers is at stake in this case,” Kohn added.
Whistleblower cases are decided by a Congressionally mandated independent Board, similar to the requirements of the FTC. Known as the Merit Systems Protection Board (MSPB), it is required to have three members, two from the President’s political party and one member from the opposition party.
Members can only be terminated from the Board “for cause.” Because whistleblowers are often critical of a sitting President, this limit was required by Congress to ensure that whistleblower cases could be heard by an independent agency, without direct pressure from the White House.
However, asserting his executive authority to terminate federal appointees, President Trump fired the only Democratic member of the Board, causing the MSPB to lose its quorum. The result: All federal employee whistleblower cases are now in limbo.
Kohn explained: “The MSPB is only one of numerous boards that whistleblowers rely on for independent and non-partisan decision-making. For example, the Securities and Commodities Exchange Commission decides all whistleblower award cases under Dodd-Frank and their members currently have similar protections as those being at issue in Slaughter. Stripping these protections is bad policy, bad law, and constitutionally indefensible,” Kohn added.
The NWC’s Brief cited a landmark speech by James Madison, a highly respected member of the Convention that drafted the U.S. Constitution and the First Congress. The NWC explained that Madison firmly believed that Congress was the proper authority to place limits on Presidential appointees.
The Brief also quoted from the highly influential Constitutional scholar, former Supreme Court Justice Joseph Story, who warned in his 1839 Commentaries on the Constitution, of the dangerous implications of granting the President “unlimited power to remove” members of the executive branch:
“Indeed, it is utterly impossible not to feel, that, if this unlimited power of removal does exist, it may be made, in the hands of a bold and designing man, of high ambition, and feeble principles, an instrument of the worst oppression, and most vindictive vengeance.”
U.S. Supreme Court Justice Joseph Story, Commentaries on the Constitution (1833)
The NWC’s Brief is linked here.
The briefs filed in the Slaughter case, and prior court decisions, are linked here.
