Strengthening the Federal Trade Commission: A Lesson from the Labor Board
The Federal Trade Commission (FTC) is facing significant challenges to its structure and the scope of its power. In March 2025, President Trump removed two Democratic-appointed FTC Commissioners from office without cause, Footnote #1 content: See David McCabe & Cecilia Kang, Trump Fires Democrats on Federal Trade Commission, N.Y. TIMES (Mar. 18, 2025), https://www.nytimes.com/2025/03/18/technology/trump-ftc-fires-democrats.html; see also David McCabe, Court Rules Trump’s Firing of F.T.C. Commissioner Was Illegal, N.Y. TIMES (July 18, 2025), https://www.nytimes.com/2025/07/17/technology/judge-trump-ftc-commissioner.html (describing Judge AliKhan’s ruling in Slaughter v. Trump, which found that President Trump’s dismissal of Commissioner Rebecca Kelly Slaughter was unlawful under current precedent); Slaughter v. Trump, 791 F. Supp. 3d 1, 6 (D.D.C. 2025). and the Supreme Court upheld these removals on a temporary basis in Trump v. Slaughter, Footnote #2 content: See Trump v. Slaughter, No. 25A264, 2025 WL 2692050 (U.S. Sep. 22, 2025) (granting a stay of a district court order that had reinstated Federal Trade Commissioner Rebecca Kelly Slaughter, and granting a writ of certiorari before judgment to decide whether Humphrey’s Executor v. United States, 295 U.S. 602 (1935), should be overruled); see also Seila Law LLC v. CFPB, 591 U.S. 197, 251 (2020) (Thomas, J., concurring in part and dissenting in part) (“[I]n the future, we should reconsider Humphrey’s Executor in toto. And I hope that we will have the will to do so.”). which all but overturned the ninety-year precedent that had insulated FTC Commissioners from at-will removal by the President. Footnote #3 content: See Humphrey’s Ex’r, 295 U.S. at 632 (upholding the constitutionality of the for-cause removal provision of the FTC Act); 15 U.S.C. § 41 (“Any Commissioner may be removed by the President for inefficiency, neglect of duty, or malfeasance in office.”). If the Supreme Court overturns Humphrey’s Executor, the FTC will no longer function as an independent agency. Footnote #4 content: See Michael D. Bopp et al., Independent No More? The Implications of the Trump Administration’s Actions on Independent Agencies, GIBSON DUNN (Feb. 25, 2025), https://www.gibsondunn.com/independent-no-more-implications-of-the-trump-administrations-actions-on-independent-agencies [https://perma.cc/5RK7-G4R2]. The implications of at-will removal for the FTC’s institutional mandate, as well as for the health and well-being of the American people, have been covered at length in legal news and scholarship to date. Footnote #5 content: See, e.g., Hayley Durudogan & Michael Sozan, What Is Humphrey’s Executor and Why Should You Care About It?, CTR. FOR AM. PROGRESS (Feb. 27, 2025), https://www.americanprogress.org/article/what-is-humphreys-executor-and-why-should-you-care-about-it [https://perma.cc/8YSM-92CW] (noting that the FTC “could be blocked from passing pro-consumer rules” if no longer independent); Jonathan Nuechterlein, You’re Fired: How Direct Presidential Control Makes the FTC Redundant, TECH. POL’Y INST. (May 6, 2025) https://techpolicyinstitute.org/publications/antitrust-and-competition/youre-fired-how-direct-presidential-control-makes-the-ftc-redundant [https://perma.cc/9REE-KA3N] (“[A]t-will presidential removal authority defeats each of Congress’s rationales for creating the FTC.”); ANDREW I. GAVIL & WILLIAM E. KOVACIC, PROGRESSIVE POL’Y INST., A DEFENSE OF THE “FOR CAUSE” TERMINATION PROVISIONS OF THE FEDERAL TRADE COMMISSION ACT 19 (2025), https://www.progressivepolicy.org/wp-content/uploads/2025/07/PPI-A-Defense-of-the-For-Cause-Termination-Provisions-of-the-FTC-Act.pdf [https://perma.cc/PT4N-XPU3] (“The model of a multimember, bipartisan, expert board will collapse if the protection against at-will dismissal disappears.”).
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