On Tuesday, President Donald Trump fired Alvaro Bedoya and Rebecca Slaughter, the two Democratic appointees to the five-member Federal Trade Commission, which protects consumers from abuses of corporate power. This is an unambiguous violation of federal law: When it created the FTC in 1914, Congress provided that commissioners, who serve 7-year terms, can only be fired for “inefficiency, neglect of duty, or malfeasance in office.” These removal protections are a statutory safeguard meant to ensure the agency’s independence.
Trump fired Bedoya and Slaughter anyway, describing their service as “inconsistent with my Administration’s policies.” In a statement, Bedoya identified the source of the inconsistency as the president’s desire for “the FTC to be a lapdog for his golfing buddies.”
Bedoya and Slaughter have both denounced their firings as illegal, but Trump claims that the Constitution empowers him to fire FTC commissioners whenever he feels like it. “Trump is the head of the executive branch and is vested with all of the executive power in our government,” said Andrew Ferguson, the Republican commissioner whom Trump elevated to chairman earlier this year. On Wednesday, Ferguson claimed to have “no doubts” about Trump’s authority under the Constitution to remove the commissioners from their role. This should be news to the Supreme Court, which said the exact opposite 90 years ago: In Humphrey’s Executor v. United States, the justices found it “plain under the Constitution” that the president does not possess “illimitable power of removal” over FTC commissioners.
Trump’s Department of Justice has been laying the groundwork for this for some time now. In a letter last month, Acting Solicitor General Sarah Harris wrote that the DOJ had “determined” that statutory removal protections for members of the FTC, National Labor Relations Board, and Consumer Product Safety Commission are all unconstitutional, and to the extent that Humphrey’s Executor says otherwise, it’s unconstitutional, too. According to Harris, the decision “prevents the President from adequately supervising principal officers in the Executive Branch who execute the laws on the President’s behalf” and has “already been severely eroded by recent Supreme Court decisions.”
This notion that presidents must be able to fire any executive branch employee for any reason (or even no reason) is called the unitary executive theory. The conservative legal movement has spent decades developing and promoting it, but Humphrey’s Executor stands in the way of its fullest realization. So, the Court’s conservative justices have been carefully undermining the precedent, leaving the central holding in place but chipping away at the edges, case by case. To the Trump administration, its conflict with the Court is not about substance, but speed—and it wants the Court to pick up the pace.
Slaughter and Bendoya at a House Judiciary Committee hearing, 2023 (Photo by Shuran Huang for The Washington Post via Getty Images)
The facts underlying Humphrey’s Executor are a virtually perfect match for the facts here. In 1933, President Franklin D. Roosevelt removed William Humphrey as an FTC commissioner because of policy disagreements, and claimed that the law’s for-cause removal protections unconstitutionally interfered with his executive power. And in Humphrey’s Executor, the Court unanimously ruled against the president, explaining that Congress designed the agency to be free from executive coercion, and that that independence can’t exist if commissioners serve at the president’s whims. “It is quite evident that one who holds his office only during the pleasure of another cannot be depended upon to maintain an attitude of independence against the latter’s will,” wrote Justice George Sutherland.
In 1988, in Morrison v. Olson, the Court again upheld removal protections for independent counsels investigating public corruption. This time, however, the Court was not unanimous: In a solo dissent, Justice Antonin Scalia argued that if Congress could restrict the removal of a prosecutor—“the virtual embodiment of the power to take care that the laws be faithfully executed”—then it was “open season upon the President’s removal power for all executive officers, with not even the superficially principled restriction of Humphrey’s Executor as cover.” Scalia quoted Article II of the Constitution, which vests executive power in the president. “This does not mean some of the executive power, but all of the executive power,” he wrote.
Twenty-odd years later, Scalia’s once-lonely view commanded a majority of the Court in Free Enterprise Fund v. Public Co. Accounting Oversight Board, a case in which both the Board’s members and their supervisors had for-cause removal protection. The Court again reaffirmed the central holding of Humphrey’s Executor, but decided that this “double” insulation deprived the president of too much control.
A decade later, the Court diminished Humphrey’s Executor even more, ruling in Seila Law v. Consumer Financial Protection Bureau that for-cause removal protections for agencies led by a single director are similarly unlawful. In a concurrence joined by Justice Neil Gorsuch, Justice Clarence Thomas urged the Court to go all the way already. “With today’s decision, the Court has repudiated almost every aspect of Humphrey’s Executor,” said Thomas. “In a future case, I would repudiate what is left of this erroneous precedent.”
Trump’s desire for unlimited power has crashed into the case before. Earlier this month, after Trump illegally fired Gwynne Wilcox from the National Labor Relations Board, a federal district court relied on Humphrey’s Executor in ordering Wilcox’s reinstatement. In her opinion, federal district court judge Beryl Howell emphasized that “an unbroken line of cases since Humphrey’s Executor has reinforced the constitutionality of removal restrictions on multimember expert boards.” By trying to fire Bedoya and Slaughter, the Trump administration is trying to get rid of this pesky precedent once and for all, knowing that at least a few justices will be happy to oblige.
