President Trump on Tuesday fired the remaining two Democratic members of the FTC, leaving only two Republicans on the commission.
The commissioners, Alvaro Bedoy and Rebecca Slaughter, announced their dismissals on social media. Both called their dismissals illegal, since the FTC is supposed to be an independent agency. Both of them called their firings illegal and Bedoy already has said he would challenge his dismissal in court.
Under the FTC Act, the President may only remove a commissioner for “inefficiency, neglect of duty or malfeasance in office.” FTC commissioners are protected from removal over policy differences by the 1935 decision of the Supreme Court in Humphrey’s Executor v. United States.
However, the White House has said the president has total control over executive agencies.
Presumably in litigation the president will rely on the decision of the Supreme Court in Selia Law v. CFPB, holding the same “for-cause” removal provision applicable to the CFPB director to be unconstitutional, and the concurring opinions by Justices Thomas and Gorsuch calling for Humphrey’s Executor to be overturned.
Bedoya said he will file suit challenging his dismissal.
FTC Chair Andrew Ferguson supported President Trump’s authority to fire FTC commissioners:
“President Donald J. Trump is the head of the executive branch and is vested with all of the executive power in our government,” Ferguson said in a statement. “I have no doubts about his constitutional authority to remove Commissioners, which is necessary to ensure democratic accountability for our government.”
The firing of the two Democrats leaves the five-member commissioners with two Republican members. Former commission chair, Democrat Lina Khan, resigned in January.
FTC members serve seven-year terms. Bedoya has served since May 2022, and had four years left in his term. Slaughter originally was nominated in May 2018 by President Trump in his first term; she filled an unexpired term on the commission. President Biden nominated her for a full term in February 2023.
On March 12 the Senate Commerce Committee voted to approve the nomination of Mark Meador to fill the third Republican slot, but he has yet to be confirmed.
Since there are two other instances already in which President Trump has terminated board members of agencies without cause, and those members already have brought lawsuits seeking reinstatement, it seems likely that this issue will be resolved by the Supreme Court. In the meantime, the two Republican members of the FTC will determine what regulations, if any, to finalize and what enforcement actions to pursue.
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