The U.S. Supreme Court should uphold Humphrey’s Executor, a precedent that provides tenure protection to members of independent agencies, a bipartisan group of 11 former commissioners at the Federal Energy Regulatory Commission told the court Thursday.
If the court decides to overturn or modify the precedent, it should specify that its decision does not affect ratemaking commissions such as FERC, the former federal energy regulators said in an amicus brief.
In Trump v. Slaughter, the Supreme Court is considering whether President Donald Trump has the authority to fire members of the Federal Trade Commission at will. The case centers on the 1935 Humphrey’s Executor precedent and follows Trump’s mid-March decision to fire two Democratic commissioners at the five-member FTC.
The U.S. Constitution gives the president the authority to fire commissioners on multimember administrative agencies, such as the FTC, according to a brief filed by U.S. Solicitor General John Sauer. “Congress’s creation of independent agencies since Humphrey’s Executor does not justify retaining the decision,” Sauer said in the brief.
A decision by the court that would let a president fire FERC commissioners without cause and replace them with members of the administration’s party would threaten a key piece of the U.S. economy, according to the brief from the former agency officials.
Following what has been a norm, FERC currently has three Republican commissioners and two Democratic members, all with staggered terms and with the majority coming from the president’s party. The commissioners oversee wholesale electric and gas rates as well as transmission and oil and gas pipeline rates.
“Eliminating for-cause removal protections would expose energy investors to political uncertainty and policy volatility, which risk higher costs for American consumers and producers,” the former FERC commissioners said. “With FERC sitting at the center of the nation’s energy renaissance, discarding its structure could damage America’s global economic position.”
Rates set by FERC help finance $40 billion in new pipelines and power lines annually, and last year more than $1 trillion of oil, natural gas and electricity flowed through that infrastructure, they said.
“Overturning Humphrey’s Executor would bulldoze the structural supports that Congress built into ratemaking commissions to protect its price-setting power from abuse,” the former FERC commissioners said. “By shielding agency action from political control, for-cause removal protections allow ratemaking commissions to sustain stable policies for the long-term benefit of regulated companies and American consumers.”
The former commissioners contend that maintaining for-cause removal protections for ratemaking commissions exercising legislative power would appropriately defer to Congress’ powers over interstate commerce.
The court is set to hear oral arguments in the case on Dec. 8.
The brief was signed by former commissioners: Elizabeth Moler (1988-1997); Donald Santa (1993-1997); Linda Breathitt (1997-2002); Patrick Wood III (2001-2005); Nora Mead Brownell (2001-2006); Joseph Kelliher (2003-2009); Jon Wellinghoff (2006-2013); John Norris (2010-2014); Cheryl LaFleur (2010-2019); Neil Chatterjee (2017-2021); and Richard Glick (2017-2022).
