The Gavel: A tale of two FTC commissioners

The Hill's weekly courts news digest.

By Ella Lee and Zach Schonfeld   |   Wednesday, September 24 By Zach Schonfeld and Ella Lee Wednesday, September 24 © Mariam Zuhaib, Associated Press A tale of two FTC commissioners The president fired a Federal Trade Commission (FTC) member, without cause, despite protections enshrined in federal law — spurring a legal challenge that landed at the Supreme Court.   That was in the 1930s, when President Franklin D. Roosevelt fired FTC commissioner William Humphrey over policy disagreements tied to his New Deal.  Do you have déjà vu?  The Supreme Court said Monday it will take up another FTC commissioner's firing at the hands of President Trump.  But as the court reconsiders the 90-year precedent set by the earlier case, it's a different landscape. The 1935 Supreme Court overruled Roosevelt's firing, but Trump is betting the current conservative majority will agree the modern FTC wields too much executive power to be shielded from presidential control.   Let's wind back the tape: Humphrey was nominated to the FTC by former President Herbert Hoover, a Republican, and commissioned for a seven-year term. After Roosevelt, a Democrat, took the White House, he sought Humphrey's resignation so that the New Deal could be "carried out most effectively" with his own personnel at the FTC.   Humphrey declined to resign, and Roosevelt fired him, prompting the legal challenge. However, Humphrey died before the Supreme Court could decide the case.   Still, the executors of his estate pressed on and won. The court ruled in Humphrey's Executor v. United States that the FTC's removal protections were constitutional, so his firing was not allowed.   Fast-forward to today: Trump fired FTC commissioner Rebecca Slaughter in March. Slaughter was initially nominated to the FTC by Trump in 2018, but former President Biden tapped her for a second term in 2023, which would expire in 2029.   Many court watchers already believed Humphrey's Executor was at death's door prior to the Supreme Court's announcement Monday that it will review Slaughter's firing.  The court in 2020 struck down removal protections at the Consumer Financial Protection Bureau (CFPB) in Selia Law LLC v. CFPB. The following year, the court in Collins v. Yellen invalidated similar protections at the Federal Housing Finance Agency.  In both, the conservative majority rooted its reasoning in how a single director leads each agency. It limited the reach of Humphrey's Executor to only multimember agencies without outright overruling the precedent.  "There certainly has long-been tension between the court's holding in Selia Law and the existence of independent agencies — there's been tension between the court's holding and the continued existence of the civil service," Julian Davis Mortenson, a University of Michigan law professor, told The Gavel.   "But for the court to eliminate the recognition of the validity of the tenure protections of the FTC would undo not only a case from the 1930s but would undo important elements of quite recent precedent, as well," he said.  Trump's second-term firings tee up what's left. Like the FTC, Trump has attempted to fire officials without cause at the multimember National Labor Relations Board, Merit Systems Protection Board, Federal Labor Relations Authority, Privacy and Civil Liberties Oversight Board, Equal Employment Opportunity Commission, National Credit Union Administration, Consumer Product Safety Commission and National Transportation Safety Board.  All of them sparked lawsuits, and the Supreme Court has so far sided with the administration.  Trump's argument raises Humphrey's Executor's other limitation: an agency must exercise "quasi-judicial" or "quasi-legislative" power, not executive power, for Congress to shield it from the president's at-will firing authority.  The Supreme Court in 1935 found the FTC met the criteria, pointing to its function making reports and recommendations to Congress.   Today's conservative-majority court has cast doubt.  "The Court's conclusion that the FTC did not exercise executive power has not withstood the test of time," Chief Justice John Roberts wrote in a footnote when deciding Selia Law.  Even if the ruling was sound 90 years ago, the justices will confront whether the federal bureaucracy's increased power in the intervening years changes the equation.  The Trump administration's primary argument is that the Supreme Court can keep the logic of Humphrey's Executor intact and merely hold that it doesn't cover the FTC.  It would follow a series of cases in which the conservative majority has already taken aim at the rise of the so-called "fourth branch of government." Justice Neil Gorsuch, Trump's first appointee to the court, explained the view perhaps most succinctly during 2023 argument involving the Securities and Exchange Commission (SEC).  "This is not your grandfather's SEC, right?" Gorsuch quipped.    Welcome to The Gavel, The Hill's weekly courts newsletter from Ella Lee and Zach Schonfeld. Click above to email us tips, or reach out to us on X (@ByEllaLee, @ZachASchonfeld) or Signal (elee.03, zachschonfeld.48).   Not already on the list? Subscribe here. IN FOCUS US attorney out; Kirk killing sparks debate; Fight over DOJ voter data Another US attorney bites the dust  Erik Siebert, former U.S. attorney for the Eastern District of Virginia, resigned Friday amid pressure to prosecute one of Trump's most prominent adversaries.  Enter Lindsey Halligan, a senior White House aide and former Trump defense attorney, who was tapped by Trump to lead the office on an interim basis — and, it seems, to push ahead with taking on the president's foes.   "Lindsey Halligan is a really good lawyer, and likes you, a lot," Trump wrote in a Truth Social post directly addressed to Attorney General Pam Bondi.  "We can't delay any longer, it's killing our reputation and credibility," the president continued. "They impeached me twice, and indicted me (5 times!), OVER NOTHING. JUSTICE MUST BE SERVED, NOW!!"  Halligan assumed the post Monday, according to a post on X by Deputy Attorney General Todd Blanche, another ex-Trump attorney.   It's the latest installation of a Trump loyalist into the important federal prosecuting offices as the president has vowed to seek legal retribution against his perceived enemies.   Siebert's resignation came after he resisted pursuing mortgage fraud charges against New York Attorney General Letitia James (D). Trump said Friday that he wanted Siebert "out."  The president said he didn't approve of Siebert because he had the support of Virginia's Democratic senators. However, several news outlets reported the pressure campaign and the office's apparent failure to uncover enough incriminating evidence to support bringing an indictment against New York's top prosecutor.  James's civil fraud case against Trump and his business empire made her a focus of his ire. She won a nearly $500 million penalty against him that was recently wiped by an appeals court, though her office's victory was otherwise kept intact. Both Trump and James's office have appealed to the state's highest court.  The allegations against James stem from a Federal Housing Finance Agency (FHFA) criminal referral that suggested she claimed a Virginia home as a primary residence while holding public office in New York and residing there.   The FHFA also lodged mortgage fraud allegations against Sen. Adam Schiff (D-Calif.) and Federal Reserve board of governors member Lisa Cook, who Trump attempted to fire over the matter, prompting a legal challenge now pending before the Supreme Court.   Trump has installed his preferred top federal prosecutors without congressional approval at least four other times, in New Jersey, Nevada, Central California and Northern New York.  In New Jersey, Trump selected his former personal lawyer and White House aide Alina Habba to serve as interim U.S. attorney, but when judges declined to extend that status, he circumvented their say by withdrawing her formal nomination to the post and putting her in the role on an acting basis.   Habba still holds that post today, even though a judge last month ruled that she has been unlawfully serving in it after lawyers for two New Jersey criminal defendants argued she did not have the authority to prosecute their case after the 120-day clock on her interim status ran out. The Trump administration has appealed that decision.  A similar maneuver occurred in the Northern District of New York, where judges refused to extend the interim term of Trump's chief federal prosecutor there, John Sarcone III. Sarcone was made acting U.S. attorney.   Both Sigal Chattah, the U.S. attorney in Nevada, and Bill Essayli, the U.S. attorney for the Central District of California, which covers Los Angeles, saw their titles swapped to "acting" so they could remain in their posts longer without Senate confirmation, as well.  Though Trump's moves have raised the specter of a politicized Justice Department, the president's allies insist that the moves should be seen as par for the course.   Mike Davis, a Trump ally and head of the conservative Article III Project, wrote on X after Siebert's resignation that DOJ's chain of command goes straight up to the president and that checks, like judges and jurors, are already built into the system.   "This post-Watergate fiction the duly elected President doesn't run the executive branch is both unconstitutional and dangerous," Davis said. "And it seems to only apply to Republican presidents."  And at a press conference Monday, U.S. Attorney for the District of Columbia Jeanine Pirro rejected the notion that the president's whims would affect her office.   "Politicization!" Pirro interjected in response to a reporter's question about the matter. "No, I am not — I am not worried about that at all."  Kirk killing response fuels free speech debate   The Trump administration's quest for punishment in the wake of conservative activist Charlie Kirk's killing has sparked a debate surrounding free speech.  Attorney General Pam Bondi last week said the administration will go after people for hate speech, and her deputy, Todd Blanche, has suggested that protestors who interrupted Trump's recent dinner at a seafood restaurant could face racketeering charges.   Federal Communications Commission (FCC) Chair Brendan Carr has pressured ABC to suspend late-night comedian Jimmy Kimmel after he accused conservatives of trying to score "political points" off Kirk's assassination.  And on Monday, Trump formally designated antifa as a domestic terror organization.  "The Department of Justice is also investigating networks of radical-left maniacs who fund, organize, fuel and perpetrate political violence," Trump said at Kirk's funeral this past weekend. "And we think we know who many of them are. But law enforcement can only be the beginning of our response to Charlie's murder."  Antifa, short for "anti-fascists," is not a single organization; it's a decentralized movement, or ideology, whose far-left adherents have often tangled with far-right groups at demonstrations.   Trump's order pertains only to applicable law — and no one statute targeting domestic terrorism exists. It specifically states that it does not create "any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States."  As many of Trump's allies voice support, the administration's pressure on Kimmel's show has led to push back from some conservatives who've long raised alarm about the federal government trampling on free speech.  "I got to say, that's right out of 'Goodfellas,'" Sen. Ted Cruz (R-Texas) said on his podcast of the FCC chair's pressure on Kimmel.   "That's right out of a mafioso coming into a bar, going, 'Nice bar you have here, it would be a shame if something happened to it,'" Cruz continued.  Many Republicans remain behind Trump, but Cruz's comments were later endorsed by two other GOP senators, Dave McCormick (Pa.) and Mitch McConnell (Ky.), and The Wall Street Journal's editorial board.  The debate has marked a homecoming moment for Murthy v. Missouri, when the Supreme Court last year declined to rule that the Biden administration's jawboning of social media platforms to take down certain content violated the First Amendment.  The decision is making the rounds on social media again, but the court merely ruled those plaintiffs had no legal right to sue, known as standing. It didn't reach the free speech issues.  The true, relevant case is National Rifle Association v. Vullo, which was also decided last year. The justices ruled a New York regulator couldn't encourage insurers and banks to sever ties with the gun rights group without violating the First Amendment.  "Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors," liberal Justice Sonia Sotomayor wrote for the unanimous court.  Kimmel, ABC and its parent company, Disney, haven't mounted any legal challenges. If one arises, expect Vullo to play a dominant role.  A key hurdle for any lawsuit, however, is that some of the pressure was driven by companies, which unlike the government are not covered by the First Amendment.  Nexstar Media Group and Sinclair, which each own various ABC affiliates and have condemned Kimmel over his recent remarks, announced hours before he was set to return they will not air his show. Nexstar also owns The Hill.  Another key front to watch: Bondi's suggestion that the government will "absolutely target" hate speech.  She has cleaned up her comments, writing that "Hate speech that crosses the line into threats of violence is NOT protected by the First Amendment. It's a crime," pointing to federal statutes banning threats against public officials.  Hate speech is generally protected under the First Amendment. As recently as 2017, conservative Justice Samuel Alito called it a "bedrock" First Amendment principle that "speech may not be banned on the ground that it expresses ideas that offend."  Supreme Court precedent only leaves room for narrow exceptions, like unprotected "true threats." The court ruled in 2023 the speaker must be aware they are acting recklessly for prosecutors to charge it as a crime.  One source close to the White House told our colleague Brett Samuels that the controversy was the latest instance in which Bondi "overspoke."   Fight over DOJ's voter data demands intensifies  The Trump administration's effort for states to turn over voter data is heating up.  Many Democratic election officials are resisting, and the Justice Department has started to sue.  Speaking to reporters Tuesday, Michigan Secretary of State Jocelyn Benson (D) and Nevada Secretary of State Cisco Aguilar (D) confirmed their offices received a letter from the Justice Department seeking copies of their statewide voter registration lists.  Federal law requires states to make "available for public inspection" certain voter records. But the officials pushed back against the demand as "unprecedented," a move they framed as another example of executive overreach by the Trump administration.  "These requests from the DOJ are not normal," Aguilar said during a press briefing held by the nonpartisan States United Democracy Center. "On the surface, it may seem like regular oversight, but it's not."  The DOJ's demands come in response to Trump's election integrity executive order he signed in March.  Judges have halted some of the more dramatic overhauls concerning documentary proof-of-citizenship requirements and mail-in voting after the Democratic National Committee, blue states and private groups sued.  But another section remains in effect that directs Bondi, the attorney general, to take appropriate action against states that fail to make reasonable efforts to maintain their voter rolls, as required by federal law.  The Justice Department says the voter data is needed for Bondi to determine if the states are complying.   After sending letters over the summer, the Trump administration escalated the fight earlier this month by suing two Democratic-led states that resisted — Oregon and Maine — to force them to turn over the data.  "I reiterate my deep concern with DOJ's unexplained request for sensitive personal data concerning roughly one million Maine voters - a request that far exceeds what would be necessary for legitimate evaluation of Maine's compliance with our obligations under law," Maine Secretary of State Shenna Bellows (D) told government lawyers in an Aug. 8 letter recently made public in court filings.  The Justice Department wrote in court filings last week, "Maine has violated three federal statutes and is actively thwarting the Attorney General's performance of her duties to ensure that States fairly administer Federal Elections."  Benson, the secretary of state for Michigan, said the effort comes amid other bids by the Trump administration to "change the voting processes" ahead of the 2026 elections.   "That, alongside this power grab, is extremely alarming," she said, "and we believe should concern all Americans, when the president directs the Justice Department to intimidate state election officials in a way that would pressure us to turn over personal information about registered voters in our state that we are under oath to protect."  Benson added that pushback has come from election officials from both political parties across the country.  "It's something that we, as secretaries of state, will not allow and will not stand for," she said.   SIDEBAR 5 top docket updates Trump attempted assassin convicted: A jury on Tuesday convicted Ryan Routh of attempting to assassinate Trump at his golf course in Florida last year. Routh tried to stab himself with a pen after the five-count guilty verdict was read.  SCOTUS schedules tariff arguments: The Supreme Court has scheduled oral arguments in the battle over Trump's tariffs for Nov. 5.  TPS reaches SCOTUS, again:  The Trump administration on Friday for a second time brought an emergency appeal to the Supreme Court seeking to end Temporary Protected Status for Venezuelans.  Passports, too: Hours earlier, the administration asked the Supreme Court for an emergency order reinstating a policy blocking transgender Americans from matching the sex listed on their passports with their gender identity.  Oct. 7 lawsuit: American victims of the Hamas-led attacks on Israel on Oct. 7, 2023, filed a $7-billion lawsuit Thursday against the Palestinian militant group and others they say planned the assault.  In other news Alito meets the pope: Justice Samuel Alito was among the judges, lawyers, court officials and legal scholars from about 100 countries who participated in the Catholic Church's "Jubilee of Justice" on Saturday. In his talk, Alito warned a crowd that religious liberty was under siege globally, according to the New York Times's write-up of the event. Click here to see Alito and Pope Leo XIV, the church's first-ever American-born pope, shake hands.   DOJ departure: Chad Mizelle, chief of staff at the Department of Justice, is leaving the agency to return to his family in Tampa, Axios scooped. Mizelle's wife, Kathryn Kimball Mizelle, is a federal judge there.  You win some, you lose some: As appellate lawyer Raffi Melkonian aptly pointed out on X, a win at the Supreme Court doesn't always equal a total victory in the case. The justices in May sided with the estate of Ashtian Barnes, a 24-year-old killed by a police officer during a traffic stop, ruling unanimously that courts must consider all relevant circumstances when weighing police shooting challenges, not just the "moment of the threat." But on remand to a lower court, Barnes's estate lost on summary judgment.   PETITION PILE Petitions to take up cases that the justices are keeping a close eye on. This marks our third week of previewing cases the Supreme Court will consider granting at its "long conference," when the justices work through the build-up of petitions over the summer.  We'll have one final list of previews in next week's edition, but this week, we focus on petitions filed by state officials:  Clean Water Act (Ohio): Ohio Attorney General Dave Yost (R) wants to revive the state's lawsuit seeking penalties against a natural-gas pipeline in the state for allegedly discharging millions of gallons of diesel-laced fluid into Ohio waters.  The case concerns Section 401 of the Clean Water Act. It gives states a role in certifying projects meet water-quality standards, but states waive the power if they don't act within a year of a certification "request." The lower courts ruled Ohio waived its claims, but the state wants the justices to review whether the pipeline's "request" was valid and a second legal question. The case is Ohio ex rel. Yost v. Rover Pipeline.  New Orleans prison (Louisiana): Represented by Louisiana Attorney General Liz Murrill (R), New Orleans' sheriff hopes to wipe the court-ordered construction of an 89-bed facility for detainees with mental health needs. The order stems from a 2012 lawsuit filed by inmates claiming inadequate housing that violated their constitutional rights. The federal government has long been involved in the case and urged the justices to stay out, noting the facility was already nearly 70-percent complete and would likely be finished, anyways. Louisiana's appeal concerns thorny questions over if it is entitled to end the court order under the Prison Litigation Reform Act. The case is Hutson v. United States.  Qualified immunity (Pennsylvania): Pennsylvania Attorney General Dave Sunday (R) requests the Supreme Court grant qualified immunity to John Wetzel, the state's former top corrections official who was sued by death-row inmate Roy Lee Williams. A convicted murderer with a history of mental illness, Willams says his constitutional protection against cruel and unusual punishment was violated when he spent 26 years in solitary confinement under a former state policy. Wetzel is entitled to qualified immunity unless he violated Williams' "clearly established" constitutional right. The courts have now cast doubt on the constitutionality of the old policy, but Pennsylvania it was blessed decades ago by an appeals court. The case is Wetzel v. Williams.  Wiped conviction (Maryland): Maryland Attorney General Anthony Brown (D) seeks to reinstate Charles Martin's attempted murder conviction, which was wiped because prosecutors failed to turn over a computer analysis report before trial. A state appellate court ruled Martin was not entitled to a new trial given the strength of other evidence. The federal courts overruled it, ordering the new trial. Maryland's appeal points to Antiterrorism and Effective Death Penalty Act, which instructs federal judges to be highly deferential in evaluating state criminal convictions. The case is Klein v. Martin.  Moot death-row case (California Supreme Court justice): California's chief justice and a lower judge want to wipe a ruling that they violated the due process rights of death-row inmate Stephen Redd by failing for 26 years to appoint postconviction counsel as required by law. In 2023, an appeals panel ruled Redd had presented a plausible claim, but he died two months later, rendering the case moot. The court refused to wipe its decision, and the justice believes it should be tossed because she didn't get an opportunity to appeal it further. The case is Guerrero v. Redd.  Elections (Pennsylvania legislators): 27 Republican Pennsylvania state legislators want to revive their challenge to voter registration orders by Biden and Gov. Josh Shapiro (D). The lawmakers claimed it usurped their authority under the Constitution's Elections Clause, which gives state legislatures substantial authority over federal elections. Lower courts ruled the legislators had no legal standing to bring the case. It does not appear the high court is giving this one much attention. The case is Keefer v. Trump.  ON THE DOCKET Don't be surprised if additional hearings are scheduled throughout the week. But here's what we're watching for now:     Today A federal judge in Washington, D.C., is set to hold a hearing regarding the Justice Department's timeline to accept mitigating evidence from the defense as it decides whether to seek the death penalty against Elias Rodriguez, accused of fatally shooting two Israeli embassy staffers earlier this year.   A federal judge in Massachusetts is set to hold a hearing on the Trump administration's motion to dismiss a challenge to layoffs cutting half of the Education Department's Office of Civil Rights.  Thursday A federal judge in Washington, D.C., is set to hold a preliminary injunction hearing in 12 Democratic House lawmakers' challenge to a new policy requiring lawmakers to give seven days' notice before visiting an Immigration and Customs Enforcement facility.  Another D.C. federal judge is set to hold a hearing for partial summary judgment in a challenge to the Export-Import Bank of the United States's acting board's approval of a $4.7 billion loan to subsidize a foreign corporation's construction of a liquefied natural gas project in Mozambique.  Friday There are no notable hearings scheduled for Friday.  Monday The Supreme Court will hold its so-called "long conference" behind closed doors, where the justices will consider the hundreds of petitions that piled up during their summer break. It's the unofficial kick-off of the court's new term.   A waiver hearing is scheduled in the Utah criminal case against Tyler Robinson, the 22-year-old accused of fatally shooting conservative activist Charlie Kirk.   Tuesday The U.S. Court of Appeals for the 2nd Circuit will hear oral arguments in the Trump administration's appeal of a federal judge's order releasing Columbia University student Mohsen Mahdawi from immigration detention. Mahdawi was taken into custody during his naturalization interview.  The 2nd Circuit will also hear oral arguments in the administration's appeal of a federal judge's intervention in Tufts University student Rümeysa Öztürk's immigration case.   A federal judge in Washington, D.C., is set to hold a preliminary injunction hearing in the AFL-CIO's challenge to Trump's executive order stripping most federal workers of their collective bargaining rights.  WHAT WE'RE READING Reuters' Anthony Deutsch, Humeyra Pamuk and Stephanie van den Berg: US could hit entire International Criminal Court with sanctions soon  The Wall Street Journal's Peter Loftus: Kenvue Braces for Wave of New Lawsuits Over Tylenol's Potential Link to Autism  Votebeat's Carter Walker in Spotlight PA: 1000s of mail ballots have been rejected because of Pa.'s disputed dating rule. Will the courts finally settle the issue?  The Free Press's Doriane Lambelet Coleman: Before RBG, There Was Myra Bradwell  CBS News's Melissa Quinn: Trump's plan to label antifa a "domestic terrorist organization" likely to face legal hurdles: "You can't prosecute an ideology"  We'll be back next Wednesday with additional reporting and insights. In the meantime, keep up with our coverage here. Questions? Tips? Love letters, hate mail, pet pics? Email us: elee@thehill.com and zschonfeld@thehill.com.  On Signal: @elee.03 and @zachschonfeld.48.  Privacy Policy   |   View in Browser    |   Manage Subscriptions Sign Up for Other Newsletters   |   Unsubscribe  400 N Capitol Street NW Suite 650, Washington, DC 20001 Copyright © 1998 - 2025 Nexstar Media Inc.   |   All Rights Reserved.

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