Democrats fight "illegal" firings that leave only Republicans at consumer agency.
Federal Trade Commission Commissioners Rebecca Kelly Slaughter and Alvaro Bedoya sit at a table and chat with each other at a Congressional hearing. Federal Trade Commission Commissioners Rebecca Kelly Slaughter and Alvaro Bedoya sit at a table and chat with each other at a Congressional hearing.
Federal Trade Commission Commissioners Rebecca Kelly Slaughter and Alvaro Bedoya at a House Judiciary Committee hearing on Capitol Hill in Washington, DC on July 13, 2023. Credit: Getty Images | The Washington Post
President Trump fired both Democratic members of the Federal Trade Commission yesterday, advancing his administration's claim that the president can fire FTC commissioners despite a US law and a 1935 Supreme Court ruling stating that the president cannot do so without good cause.
Trump fired Democrats Alvaro Bedoya and Rebecca Kelly Slaughter, both of whom said the firings are illegal. Trump "tried to illegally fire me. I'll see the president in court," Bedoya wrote. The FTC was created "to fight fraudsters and monopolists," but Trump "wants the FTC to be a lapdog for his golfing buddies," Bedoya said.
A statement from Slaughter said, "The President illegally fired me from my position as a Federal Trade Commissioner, violating the plain language of a statute and clear Supreme Court precedent." Slaughter said Trump "fears the accountability that opposition voices would provide if the president orders Chairman [Andrew] Ferguson to treat the most powerful corporations and their executives—like those that flanked the President at his inauguration—with kid gloves."
US law says any FTC commissioner "may be removed by the President for inefficiency, neglect of duty, or malfeasance in office." The Supreme Court held in a 1935 case, Humphrey's Executor v. United States, that "Congress intended to restrict the power of removal to one or more of those causes."
The Trump administration claims the case was wrongly decided, but the ruling is still in effect. Trump's Department of Justice said last month that it would urge the Supreme Court to reverse the Humphrey's Executor ruling, saying it "prevents the President from adequately supervising principal officers in the Executive Branch who execute the laws on the President's behalf."
Trump previously fired two of the three Democratic commissioners on the Equal Employment Opportunity Commission.
“You have been removed from the FTC”
The firings of Bedoya and Slaughter increase the odds that the Supreme Court will decide whether the 1935 ruling should be narrowed, thrown out, or kept in place. It would be an important test case for Trump's larger quest to take control of agencies that were set up to make decisions independently of the White House.
Elise Phillips, policy counsel at consumer advocacy group Public Knowledge, predicted that Trump will ultimately lose in court. "This reckless, new attempt to undermine a federal agency's independence and bipartisan structure is flatly illegal—contrary to both the statute that created the FTC, and longstanding Supreme Court precedent—and will undoubtedly be overturned by the courts," she said.
The New York Times reported on the contents of a letter sent on behalf of Trump to one of the two fired commissioners. "I am writing to inform you that you have been removed from the Federal Trade Commission, effective immediately," the letter reportedly said. "Your continued service on the FTC is inconsistent with my administration's priorities." The letter also said the Humphrey's Executor protections do not fit "the principal officers who head the FTC today."
US Sen. Elizabeth Warren (D-Mass.) said that "Donald Trump just illegally fired two independent commissioners at the FTC who fight big corporations that abuse consumers and workers. Why? Trump's billionaire donors expect a return on their investment. He works for them, not you. The courts must reinstate the commissioners."
Last month, Trump issued an executive order asserting "Presidential supervision and control of the entire executive branch." A White House fact sheet said the order applies to "so-called independent agencies like the Federal Trade Commission (FTC), Federal Communications Commission (FCC), and Securities and Exchange Commission (SEC)."
FTC Chair: Trump can fire members
Ferguson, who was promoted to the FTC chairmanship by Trump in January, backed Trump's power to fire commissioners. "President Donald J. Trump is the head of the executive branch and is vested with all of the executive power in our government. I have no doubts about his constitutional authority to remove Commissioners, which is necessary to ensure democratic accountability for our government," Ferguson said in a statement posted on the FTC website after the firings.
Ferguson has previously said that "Humphrey's Executor was wrongly decided, is deeply anti-democratic, and ought to be overruled."
The Humphrey's Executor ruling said the FTC was created to be "an independent, non-partisan body of experts, charged with duties neither political nor executive, but predominantly quasi-judicial and quasi-legislative." The court ruled that President Franklin Roosevelt, who had fired Commissioner William Humphrey, could not fire an FTC commissioner for political reasons.
"When Congress provides for the appointment of officers whose functions, like those of the Federal Trade Commissioners, are of legislative and judicial quality, rather than executive, and limits the grounds upon which they may be removed from office, the President has no constitutional power to remove them for reasons other than those so specified," the court said in a unanimous ruling.
Supreme Court ruling still in effect
In the DOJ's recent statement claiming that Humphrey's Executor does not protect FTC commissioners, Acting Solicitor General Sarah Harris pointed to a 2020 Supreme Court ruling that said the for-cause removal precedent cannot be extended to the Consumer Financial Protection Bureau (CFPB).
Harris said the Department of Justice "determined that certain for-cause removal provisions that apply to members of multi-member regulatory commissions are unconstitutional and that the Department will no longer defend their constitutionality." The DOJ's determination applies to the FTC, the National Labor Relations Board, and the Consumer Product Safety Commission, she wrote. The exception recognized in Humphrey's Executor "does not fit the principal officers who head" those three bodies, she wrote.
"The Supreme Court has made clear that the holding of Humphrey's Executor embodies a narrow 'exception' to the 'unrestricted removal power' that the President generally has over principal executive officers," and that it represents "the outermost constitutional limit" on the president's power, Harris wrote.
The 2020 ruling cited by Trump's DOJ doesn't overturn Humphrey's Executor, however. "While we do not revisit Humphrey's Executor or any other precedent today, we decline to elevate it into a freestanding invitation for Congress to impose additional restrictions on the President's removal authority," the court said. It found "there are compelling reasons not to extend those precedents to the novel context of an independent agency led by a single Director," referring to the CFPB.
We contacted the White House about Trump's decision to fire the commissioners despite Humphrey's Executor still being in effect and will update this article if it provides a response.
The firings leave the FTC with only two commissioners instead of the typical five. Under US law, an FTC quorum is defined simply as a "majority of the members of the Commission in office and not recused from participating in a matter."