I just saw the news that President Trump has fired the two Democratic Federal Trade Commissioners, Alvaro Bedoya and Rebecca Kelly Slaughter. This may set up a test case to determine, ultimately, whether the Supreme Court will uphold Humphrey's Executor v. United States, 295 U.S. 602 (1935), which essentially held that Congress can create independent agencies such as the FTC (which deals with antitrust and unfair competition matters), and can restrict the president's ability to terminate commissioners without cause. I am not an administrative law scholar, so I have little to offer concerning how the current Supreme Court might rule in this case when it reaches them. (We can pretty sure of an ideological split, though, given the current justices' past writings.) Nor have I always been in agreement with the views expressed by Commissioners Bedoya and Slaughter during their tenure. But I do think the ongoing assault on independent agencies (this is not the only example) is a wrong-headed policy, and my hope is that this is one case in which the Court will respect stare decisis.
In the interim, this is huge news because the Commission now has two Republican Commissioners and a third on the way. By statute, it is supposed to have five commissioners, no more than three from one party. Will the courts reinstate Commissioners Bedoya and Slaughter, while the matter is litigated? If not, will Trump try to fill the two Democratic vacancies, or leave them open?
Some further thoughts (3-20-2025): Regarding the second paragraph above, it's kind of difficult to imagine any two Democrats agreeing to fill the positions, but the statute (15 U.S.C. section 41) only says that no three members may be from any one party. So what if the administration tries to fill the two positions with, say, two Independents, or two Libertarians--or maybe two Republicans who opportunistically switch parties? And what happens (whether the positions are filled or not) if, as I hope, the Supreme Court reaffirms Humphrey's Executor? Is every decision the FTC makes in the absence of Commissioners Slaughter and Bedoya thereby null and void? What a mess.
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