Solicitor General D. John Sauer argued that the president, as the head of the executive branch, should have the power to fire agency heads for the FTC and similar agencies because they are under the executive branch. Sauer told the justices that “the president’s power to remove officers wielding the executive power is conclusive and preclusive,” meaning that Congress can’t legislate away that power.

The solicitor general’s assertion was met with some pushback by justices who questioned how far-reaching that claim would be and whether the agencies are solely exerting executive power.

Chief Justice John Roberts asked about the Library of Congress, invoking an emergency docket case that the Supreme Court has thus far punted on over Trump’s bid to fire the register of copyrights, and other independent agencies that exert both legislative and executive branch powers.

“In [Free Enterprise Fund v. Public Company Accounting Oversight Board], this court aptly stated that the vast nature of the federal government is a reason not to make general pronouncements on issues that have been argued. There are situations where there are tough lines drawn,” Sauer argued.

Justices Sonia Sotomayor and Elena Kagan expressed concern over the significant power they might hand a president by placing these independent agencies under his direct control if they were to remove protections against firing officers without cause. Kagan asked Sauer about whether, if the high court gives the president that power, Congress would lose its power over the agencies to which it has delegated some of its rulemaking powers.

“If you take away a half of this bargain, you end up with just massive, uncontrolled, unchecked power in the hands of the president. It’s really hard to affect both sides of this bargain because it’s already been done,” Kagan said. “So the result of what you want is that the president is going to have massive unchecked, uncontrolled power not only to do traditional execution but to make law through legislative and adjudicative frameworks.”

Sauer pushed back on that assertion, arguing that the Trump administration is only asking that the president oversee agencies that perform executive branch powers. He claimed that if Congress has delegated its powers to these agencies, that arrangement may raise further constitutional questions on the legality of delegating those legislative powers.

Fired FTC Commissioner Rebecca Slaughter’s lawyer, Amit Agarwal, argued that the restriction limiting the president from removing an FTC commissioner unless he shows proper cause is lawful, warning of the vast change the justices would make to the high court’s precedent, established in the 1935 decision in Humphrey’s Executor v. United States, that says the president needs a qualified reason to fire agency leaders.

Agarwal faced a grilling from the justices over how much power Congress has to insulate these executive agency heads from at-will removal by the president. Several justices questioned whether traditional single-headed agencies, such as the commerce or homeland security departments, could be converted into multi-headed agencies with removal restrictions, similar to the FTC.

Slaughter’s lawyer pushed back by claiming that officers exerting the president’s “conclusive” and “preclusive” authority under the Constitution could be fired at-will.

Justices Neil Gorsuch and Brett Kavanaugh also expressed concern over the insulation from the president’s power that executive agencies would have if the justices side with Slaughter, specifically the lack of accountability if the executive agency leaders decline to work toward the president’s priorities.

“If the president said, ‘I wish you would pursue a more aggressive enforcement policy,’ and the head of the agency says, ‘I’m not going to do that,’ there is nothing the president can do about that, right?” Kavanaugh asked Agarwal.

The Slaughter case is the third in which the Supreme Court has seen an independent agency head firing on its emergency docket in recent months, with the high court allowing firings in the interim in the two previous cases. With Slaughter, the high court again allowed the firing in the interim but also elevated the case to its merits docket, paving the way for the justices to consider the constitutional questions behind the firings rather than just the procedural issues of whether agency heads could stay on while the case plays out.

TRUMP’S FIRING POWER FACES MAJOR TEST AT THE SUPREME COURT

The justices appeared to be split along ideological lines over the matter, similarly to how they ruled on the emergency docket regarding the issue.

A decision in Trump v. Slaughter is expected within the coming months, with all decisions for the Supreme Court’s current term expected to be released by the end of June 2026.