Trump Fires Democratic FTC Commissioners
The removals challenge Humphrey’s Executor, a Supreme Court precedent that protects independent agency officials from political firings.
President Donald Trump fired Democratic Federal Trade Commission (FTC) Commissioners Alvaro Bedoya and Rebecca Kelly Slaughter on Tuesday. In so doing, Trump is ignoring a 90-year-old Supreme Court precedent that restricts the removal of commissioners to "inefficiency, neglect of duty, or malfeasance in office," which could make the terminations illegal.
After the firings, FTC Chair Andrew Ferguson said he had "no doubts about [the president's] constitutional authority to remove Commissioners," citing Trump's possession of "all of the executive power in our government." Bedoya disagreed, denouncing his firing as illegal in a post on X. He also shared a statement from Slaughter, who described the firings as "violating the plain language of a statute and clear Supreme Court precedent."
The relevant precedent is the 1935 Supreme Court case Humphrey's Executor v. U.S. and the statute is the Federal Trade Commission Act of 1914. The Court found "it plain under the Constitution that illimitable power of removal is not possessed by the President" because the power of Congress to create quasi-legislative agencies like the FTC includes "power to fix the period during which they shall continue, and to forbid their removal except for cause in the meantime." The FTC itself was established and its commissioners were empowered to prosecute "unfair methods of competition…and unfair or deceptive acts or practices in or affecting commerce," regardless of presidential administration.
Thomas Berry, director of the Cato Institute's Robert A. Levy Center for Constitutional Studies, tells Reason that Trump's firings represent "a direct challenge to the Supreme Court precedent Humphrey's Executor, which held that Congress may protect the heads of certain 'independent agencies' from removal at will by the president."
Berry argues that Humphrey's Executor was wrongly decided because "the president's duty to enforce the law requires the ability to fire executive branch officials who are in disagreement with the president's views on how the law should be enforced." He suspects that, while lower courts will hold Trump's actions as illegal according to the precedent, "the Supreme Court has the ability to overrule Humphrey's Executor [and] there is a good chance it will do so."
Geoffrey A. Manne, president and founder of the International Center for Law and Economics, shares Berry's prediction. In an email to Reason, Manne says Humphrey's Executor "is probably not long for this world, and thus, neither is the 'independence' of the FTC." Manne explains that the Federal Trade Commission Act requires that no more than three of the commissioners may be of the same political party. Accordingly, once Mark Meador, a Republican, is confirmed as FTC commissioner, "the Commission can just go on as is indefinitely." Manne also notes that "independent agency independence has always been more limited than people like to believe."
Ethan Yang, an adjunct research fellow at the American Institute for Economic Research and an antitrust law scholar, expresses skepticism about the independence of agencies. "There is nothing special about the FTC that suggests that employment protections are necessary or justified," he tells Reason. Moreover, Yang says that "firing the two Democratic Commissioners would only make official what has been the reality for decades": the inherent partisanship of the Commission. Yang points to both Democratic Commissioners voting "in lockstep with the former Chair Lina Khan" and "redact[ing] the dissenting opinions of the lone Republican, Commissioner Christine Wilson," under the Biden administration.
Whether Humphrey's Executor was decided rightly or wrongly, it is currently a binding precedent. Until the precedent is overruled by the Supreme Court, Trump's firings are illegal.
