On March 18, President Trump fired the two Democratic commissioners of the Federal Trade Commission (FTC). The removals of Alvaro Bedoya and Rebecca Kelly Slaughter are the latest in a series of executive actions that will limit the agency’s independence.
They also present a direct challenge to Humphrey’s Executor v. United States, the Supreme Court’s 1935 decision holding that Congress may limit the president’s authority to remove members of the FTC without good cause. Both Slaughter and Bedoya stated that they had been “illegally fired.” If the commissioners challenge their terminations, the Supreme Court may be forced to confront the question of whether Humphrey’s Executor should be overruled—an issue the Court has avoided in several recent cases that significantly limited the decision’s application to other agencies, without overruling it.
The firings are the most recent in a spate of presidential removals of the heads of independent agencies that will erode the agencies’ independence and enable the president’s power to directly supervise and control their policy functions as part of the executive branch. As we explained in an earlier post, the acting solicitor general sent letters to Congress in February stating that the Department of Justice (DOJ) will no longer defend the statutory tenure protection for certain agency heads, including FTC commissioners.
After the president fired Cathy Harris, the chairwoman of the Merit Systems Protection Board (MSPB), she filed suit and won an injunction returning her to the Board. Former National Labor Relations Board (NLRB) member Gwynne Wilcox also sought judicial intervention and obtained a district court order reinstating her.
In the cases brought by Harris and Wilcox, DOJ sought emergency relief from the D.C. Circuit, asking the court of appeals to issue an immediate administrative stay and stay the district court’s orders pending appeal. The D.C. Circuit (Judges Karen Henderson, Patricia Millett, and Justin Walker) heard oral argument Tuesday and appeared to be divided on the Humphrey’s Executor question.
While Walker seemed more sympathetic to DOJ’s arguments, Millett characterized them as a request that the court “follow Supreme Court precedent but not take them at their word and instead psychoanalyze whether somehow they were subconsciously overruling what they said they were keeping in place.”
If the case makes its way to the Supreme Court, which seems likely, the Court will no longer be able to avoid the question at the heart of the dispute about the recent firings: Should Humphrey’s Executor be overruled? The answer to that question will determine whether independent agencies continue to remain independent or become part of the executive branch.
For more insights into advertising law, bookmark our All About Advertising Law blog and subscribe to our monthly newsletter. To learn more about Venable’s Advertising Law services, click here or contact one of the authors. And listen to the Ad Law Tool Kit Show—a Venable podcast.