Two Commissioners of the Federal Trade Commission who were summarily removed from office sued President Trump and FTC officials today, arguing that their removal violated the FTC Act, the Administrative Procedure Act, and the separation of powers.

The case tees up a challenge to the FTC's congressionally-created independent structure and the congressionally-created independent structure of other multi-member agencies.

The complaint in Slaughter v. Trump is here; the full docket is here.

The plaintiffs allege that on March 18 they each received an e-mail from Trent Morse, Deputy Director of Presidential Personnel, which "included a message from President Trump: 'I am writing to inform you that you have been removed from the Federal Trade Commission, effective immediately.'" The plaintiffs allege that the notice gave no reason for the removal.

But the FTC Act provides that FTC Commissioners are removable by the President only for "inefficiency, neglect of duty, or malfeasance in office." (That restriction on removal, or something like it, is one way that Congress ensures that certain officers can act independently.) The Supreme Court unanimously upheld this removal restriction in 1935 in Humphrey's Executor v. United States. More recently, the Court in Seila Law v. CFPB said that independent multi-member agencies were one of two "exceptions" to the President's power to remove officers within the Executive Branch.

The plaintiffs allege that "[t]he President's message briefly acknowledges Humphrey's Executor but asserted that it 'does not fit the principal officers who head the FTC today' because, '[a]s presently constituted, the FTC exercises substantial executive power.' After listing certain of the FTC's powers, the message stated: 'An independent agency of this kind has "no basis in history and no place in our constitutional structure . . . ."'"

Humphrey's Executor and independent multi-member agencies are the next targets for proponents of the unitary executive theory–the idea that the President has plenary power to remove officers within the Executive Branch, despite the fact that Congress created certain offices with independence.

It's not clear yet, though, how the Trump Administration will lodge its attack. The language in the plaintiffs' removal notice suggests that the Administration might first try to distinguish the current FTC from the FTC in Humphrey's Executor, arguing that independence in the current FTC is a greater encroachment on executive authority because (unlike the earlier FTC) it "exercises substantial executive power." That approach would affect independent multi-member agencies "with substantial executive power," but it could leave Humphrey's Executor itself and certain other independent multi-member agencies intact.

But if the Administration argues that Humphrey's Executor should be overruled–and if the Supreme Court ultimately agrees–this case could mark the end of independent multi-member agencies.

In other cases, the Trump Administration said that it intended to pursue both lines of argument.