President Trump Targets Humphrey's Executor Directly

President Trump acts to remove two Democratic commissioners from the Federal Trade Commission. Litigation is likely.

The New York Times reports that President Trump has acted to remove two Democratic commissioners from the Federal Trade Commission.

President Trump fired the two Democratic members of the Federal Trade Commission on Tuesday, a rejection of the corporate regulator's traditional independence that may clear the way for the administration's agenda.

The White House told the Democrats, Rebecca Kelly Slaughter and Alvaro Bedoya, that the president was terminating their roles, according to statements from the pair. The F.T.C., which enforces consumer protection and antitrust laws, typically has five members, with the president's party holding three seats and the opposing party two. . . .

"I am writing to inform you that you have been removed from the Federal Trade Commission, effective immediately," said a letter sent to one of the commissioners, which was reviewed by The New York Times. "Your continued service on the F.T.C. is inconsistent with my administration's priorities."

This action , even more than the removal of National Labor Relations Board Chair Gwynne Wilcox, targets Humphrey's Executor v. United States as that case concerned the constitutionality of limits on the removal of FTC commissioners. As least one of the removed FTC commissioners has stated his plans to sue.

The removals leave the FTC with two sitting commissioners. Assuming that the President's action is upheld (either by overturning Humphrey's or distinguishing on the grounds that the FTC today exercises more core executive power than it did in the 1930s), this will free up the FTC to act in line with the President's policy priorities.

With four commissioners, the FTC was potentially deadlocked and was unlikely to reverse Biden Administration policies or adopt new initiatives and measures ought by Chair Andrew Ferguson. With only two commissioners of the same party, however, that is no longer a problem. Commissioner Holyoak is likely to agree with Chair Ferguson on most issues.

But can the FTC act with only two commissioners? Is that a quorum? Apparently it is under existing FTC regulations. 17 CFR § 200.41 provides:

A quorum of the Commission shall consist of three members; provided, however, that if the number of Commissioners in office is less than three, a quorum shall consist of the number of members in office; and provided further that on any matter of business as to which the number of members in office, minus the number of members who either have disqualified themselves from consideration of such matter pursuant to § 200.60 or are otherwise disqualified from such consideration, is two, two members shall constitute a quorum for purposes of such matter.