Susan Walsh/AP Photo
Rebecca Kelly Slaughter, testifying before the House in 2019
The Trump administration has made an illegal attempt to fire two Democratic commissioners on the Federal Trade Commission, advancing a fight to change Supreme Court precedent and centralize control of independent agencies in the hands of the chief executive.
Rebecca Kelly Slaughter and Alvaro Bedoya, both of whom served with former chair Lina Khan in the FTC majority under Joe Biden, were told they were terminated today. The three of them made numerous advances over the past three years on antitrust and consumer protection policies, including successful challenges to numerous mergers and new rules cracking down on subscription deception, restrictive noncompete agreements, and other anti-fraud measures.
Since Republican Andrew Ferguson took control of the agency in January, there has been an unusual level of continuity on antitrust issues, though on consumer protection the agency has backed off significantly.
“The FTC is an independent agency founded 111 years ago to fight fraudsters and monopolists,” Bedoya said in a statement. “Now, the president wants the FTC to be a lapdog for his golfing buddies.”
Slaughter also released a statement. “The law protects the independence of the Commission because the law serves the American people, not corporate power,” she said. “Removing opposition voices may not change what the Trump majority can do, but it does change whether they will have accountability when they do it.”
Under current law and precedent, these firings are plainly illegal. In Humphrey’s Executor v. United States (1935), the Supreme Court ruled that a president cannot remove an FTC commissioner before their term is complete, except in the cases of “inefficiency, neglect of duty, or malfeasance in office.”
Specifically, the Court said that the duties of the FTC were “neither political or executive” but “quasi-judicial and quasi-legislative.” Independent agencies derive their power from Congress, and many were set up with multimember, bipartisan commissions. Given these realities, independent commissioners are not purely executive branch officials, the Court ruled. Therefore the president is bound by the terms of the statute, and cannot fire FTC commissioners without reason or cause.
The Trump administration has long claimed that this ruling is unconstitutional, and has been spoiling for a fight to get the current Court to change it. Project 2025 states clearly that “The next conservative Administration should formally take the position that Humphrey’s Executor violates the Constitution’s separation of powers.” They appear to be going agency by agency to make their point, perhaps hoping to fold these into one big lawsuit that clarifies the president’s powers with respect to independent commissions.
For example, Trump fired Gwynne Wilcox, chair of the National Labor Relations Board, in a move that violated the NLRB statute in the same fashion. A lower court reinstated Wilcox to the Board, and she is back there serving now. The Trump administration has appealed that ruling. Trump has also fired members of the Privacy and Civil Liberties Oversight Board, the Equal Employment Opportunity Commission, and the Federal Election Commission in this manner.
It’s clear that Trump is seeking to make a larger point than about just the FTC or any of the other agencies. If he can get the Supreme Court to agree that he is allowed to fire any independent commissioners, he can exercise control over them, even with members of his own party.
Already in an executive order, Trump has asserted that all executive branch officials “are subject to his supervision,” in a shot at Humphrey’s Executor. He also moved to force independent agencies to submit all draft regulations to the White House for review (except for monetary policy actions by the Federal Reserve), and to force commissions to “consult with the White House on their priorities and strategic plans. The executive order also gives the Office of Management and Budget control over independent commissions’ apportionment of federal dollars, though that was already done in practice.
Without the ability to fire top leaders of independent commissions without cause, the attempts at control in the executive order would be a little hollow. Therefore, even though Trump has confined his firings to Democrats on these commissions for the time being, the warning shots are directed at Republicans as well, to do the president’s bidding or else.
Ultimately, this gambit will succeed or fail depending on the Supreme Court’s decision on whether to uphold Humphrey’s Executor. If Trump fails, Slaughter and Bedoya will likely be reinstated to their jobs, as Wilcox was. If he succeeds, there won’t really be any more independent agencies, functionally speaking.
Numerous advocacy groups and public officials condemned the White House for the firings. “This is outrageous,” said Sen. Amy Klobuchar (D-MN), ranking Democrat on the Senate subcommittee that deals with antitrust, in a statement. “President Trump’s dismissal of Commissioners Slaughter and Bedoya is not only illegal but also hurts consumers by undermining an independent agency that Congress established to protect consumers from fraud, scams, and monopoly power.”
UPDATE: Andrew Ferguson, the current FTC chair, endorsed the firings of his fellow commissioners in a statement that echoed the extreme power grab being attempted by the administration. “President Donald J. Trump is head of the executive branch and vested with all of the executive power in our government,” Ferguson said. “I have no doubts about his constitutional authority to remove commissioners, which is necessary to ensure democratic accountability for our government.” Of course, if he did not say that, he might be joining Slaughter and Bedoya on their way out the door.
