In this episode of his "Clearly Conspicuous" podcast series, consumer protection attorney Anthony DiResta delves into recent leadership changes at the Federal Trade Commission (FTC). Mr. DiResta explores the legal implications of President Donald Trump's dismissals of Democratic Commissioners Alvaro Bedoya and Rebecca Kelly Slaughter, including statutes governing commissioner appointments and judicial decisions on the president's authority over them. The episode provides insights into the historical and legal context of FTC leadership changes and discusses how the two dismissals could affect the agency's functioning, given the new commissioner composition.
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Podcast Transcript
Welcome to another podcast of Clearly Conspicuous. As we said in previous sessions, our goals in these podcasts [are] to make you succeed in this very interesting environment right now, make you aware of what's going on with the consumer protection agencies and give you practical tips for success. As always, it's a privilege to be with you today.
President Donald Trump Dismisses FTC Democratic Commissioners
Today we discuss President Trump's recent dismissal of two FTC commissioners. On March 18, President Trump dismissed the Federal Trade Commission's two Democratic commissioners, Alvaro Bedoya and Rebecca Kelly Slaughter. FTC Chairman Andrew Ferguson issued a statement supporting the legality of the dismissals, representing that the FTC would pursue its "tireless work to protect consumers, lower prices and police anticompetitive behavior."
Court Decisions Concerning Presidential Authority Over Executive Agencies
So folks, here's some substantiated background. FTC commissioners are nominated by the president and confirmed by the Senate to fill seven-year staggered terms. By statute, there can be no more than three commissioners from the same party as the president. The president names the FTC chair. In a Supreme Court 1935 decision, Humphrey's Executor vs. United States, the court upheld the FTC's Act limit on the president's ability to remove FTC commissioners. In that case, the court held that an FTC commissioner could, by statute, be dismissed only for cause, because the agency performed quasi-legislative and quasi-judicial functions. Both sitting Republican commissioners, Ferguson and Holyoke, are on record expressing their support for overruling that decision, Humphrey's Executor.
In a more recent decision, Seila Law v. CFPB, and another decision, Collins v. Yellen, Seila decided in 2020, Collins decided in 2021, the Supreme Court held that Humphrey's Executor does not apply to agencies led by a single head. That is Congress' attempt to limit the president's ability to remove the lone head of an independent agency. In these cases, it was the Consumer Financial Protection Bureau and the Federal Housing Financing Agency, respectively. Recent decisions by federal district courts however, rejected similar attempts to dismiss agency officials, applying Humphrey's Executor. The final word will obviously rest with the Supreme Court.
Trump's dismissal of the Democratic FTC commissioners follows a letter from the acting solicitor general to Senator Durbin in February of this year stating that the DOJ would no longer defend the constitutionality of for-cause removal provisions that apply to members of multi-member agencies. The removals also follow two executive orders dated February 18 of this year and March 14 of this year, which assert broad presidential authority over federal agencies, including independent agencies.
Concluding Thoughts
So folks, here's the key takeaway. The FTC can continue to operate with a quorum comprised of just the remaining two FTC commissioners, unless a court concludes that Bedoya and Slaughter were wrongfully removed and therefore remain in office. Voting together, the two remaining commissioners can take official action and will not face a potential of a 2-2 deadlock across party lines. Any action requiring a commission vote, such as bringing, settling or withdrawing cases — withdrawing or amending Lina Khan's policies, for example, and her regulations — would have required at least one of the Democratic commissioners for a majority. But obviously we're not there right now. So stay tuned for further developments, and I wish you continued success and a meaningful day. Thank you.
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