I practiced antitrust law for almost five decades. For most of that time, if someone asked what I did, I would have to explain what the word “antitrust” meant.
Today, by contrast, antitrust is very much in the news, driven in the recent past by the aggressive actions and even more aggressive rhetoric of the Biden administration’s antitrust enforcers, and most immediately by President Donald Trump’s firing earlier this month of two Democratic members of the Federal Trade Commission (FTC). In many ways, antitrust now serves as a microcosm of all the complexity that has arrived with the Trump administration, and what appears to be its sometimes inconsistent (but always dramatic) actions.
In the immediate aftermath of the 2024 election, many seemed to assume that the new administration would immediately reverse course from former FTC Chair Lina Khan and former Assistant U.S. Attorney General Jonathan Kanter’s approach of stretching antitrust law into some kind of unrecognizable political tool. The expectation was that we would return to more “normal” antitrust, which is to say: more law enforcement and less ideology, more law & economics and less industrial and political policy.
That was then and this is now. The new heads of the antitrust agencies have said they will keep the merger guidelines promulgated by their predecessors, even though every antitrust professional who is not a progressive apologist recognizes that they are more a political statement than an expression of how enforcement decisions should be made. And they have also largely adopted and continued the most visible antitrust cases they inherited, ranging from attacks on Amazon and Google to Robinson-Patman Act (RPA) cases that are as embarrassing as the merger guidelines should be.
Thus, it does not now look like there will be a sea change in antitrust enforcement, which is too bad. As it turns out, putting the adults in charge may not make that much difference in the enforcers’ output, although the rhetoric will no doubt change.
Were the FTC Firings Legal?
Upon his inauguration, and as is the normal procedure, President Trump named a new chairman of the FTC. The selection was Commissioner Andrew Ferguson who, as a sitting commissioner, did not need to be submitted for Senate confirmation. Trump also nominated Gail Slater as the new head of the U.S. Justice Department (DOJ) Antitrust Division, and she has since been confirmed. This left both antitrust agencies in control of Republican appointees, albeit with a temporary 2-2 split at the FTC pending the expected Senate confirmation of a third Republican commissioner (Trump has nominated former Senate Judiciary Committee counsel Mark Meador to that seat).
It was therefore a shock to many to hear the March 18 news that President Trump had fired the two Democratic FTC commissioners—Alvaro Bedoya and Rebecca Kelly Slaughter. Among the reasons that some observers were so surprised is that the move will have virtually no effect on the FTC’s actions or decisions.
What many in the antitrust community may be missing is that these firings had little or nothing to do with antitrust policy, and everything to do with Trump’s very aggressive effort to reshape the federal government. Indeed, the FTC firings follow Trump’s previous dismissals of a member of the National Labor Relations Board (NLRB), the chair of the Merit Systems Protection Board, and the head of the U.S. Office of Special Counsel.
All three actions have been challenged in court. The OSC dismissal was allowed to stand by the U.S. Circuit Court of Appeals for the D.C. Circuit, after which former Special Counsel Hampton Dellinger resigned (apparently in an effort to moot the litigation). The other two dismissals were recently argued before the D.C. Circuit, and it appears likely the court will follow what is arguably existing Supreme Court precedent and allow the district court injunctions blocking those firings to stand. That would move the issue to the U.S. Supreme Court, which is where everyone should want to see it ASAP.
I say “arguably” existing precedent because it is certainly not cut and dried. In 1935, President Franklin Roosevelt tried to fire an FTC commissioner and the Supreme Court in Humphrey’s Executor held the firing was not legal. (The commissioner had died in the interim but his estate was seeking lost wages.) But the precedential value of the Court’s reasoning gets a little fuzzy. Humphrey’s described the FTC of that time as primarily a “quasi-judicial and quasi-legislative” agency that did not exercise “substantial executive power.”
I’m not clear why that was the appropriate constitutional line to be drawn at the time, but I am certain it does not describe the FTC of today. The modern FTC challenges mergers, just as the DOJ does, and engages in rulemaking over a very broad swath of the U.S. economy. It does so under both the FTC Act and various narrower statutes, such as the Children’s Online Privacy Protection Act. And if former Chair Khan and her then-colleagues had prevailed, the commission would have even extended FTC Act rulemaking to competition matters.
So, yes, there is Supreme Court precedent that speaks directly to the firing of the two FTC commissioners (and putatively to the other dismissals now before the D.C, Circuit), but no, it is not at all clear how the current Supreme Court will rule when it is presented with this issue today.
In 2020, the Court in Seila allowed the director of the Consumer Financial Protection Bureau (CFPB) to be dismissed, distinguishing the case from Humphrey’s Executor because the CFPB was not a multimember board like the FTC. In that case, Justices Neil Gorsuch and Clarence Thomas would have simply overruled Humphrey’s Executor as impinging on the president’s constitutional authority. When this issue gets to the Court again—whether from the NLRB or the FTC—will three other justices agree with Gorsuch and Thomas? My bet is yes.
The last time I looked, the Constitution delineates three branches of government, and none of them are “independent” agencies. The president can fire anyone in the executive branch (ignoring for the moment civil service and/or other limiting procedures, which also may or may not be constitutional). It seems to me very unlikely that today’s Supreme Court will not conclude that President Trump has the same authority with respect to other officials who exercise law enforcement or regulatory executive power.
What Purpose Do the Firings Serve?
To get a few common questions out of the way, these firings are not an end in themselves, and the FTC dismissals have nothing to do with antitrust policy (as mentioned, that is already under Republican appointees’ control). There has also been considerable chatter on X.com and other forums about whether Trump will replace the fired commissioners with Republicans, or “friendly” Democrats. My guess is that he won’t replace them with anyone.
If you step back from the antitrust micro and look at the macro picture without the blinders of partisan lenses, it is obvious that Trump is trying to do something much more significant than simply removing Democrats who don’t share his policy goals. He is trying to completely restructure the federal government.
This is clear with the various Department of Government Efficiency (DOGE) efforts and indeed, with the administration’s efforts to sever the ties between the actual government and the shadow state of nongovernmental organizations (NGOs) and others who long have been funded to do things the government either can’t do or doesn’t want to take the political risk of doing. Another clear part of the effort is for the executive to assert largely unreviewable authority in national security and foreign relations, including immigration policy.
But the real prize is the evisceration/elimination of the administrative state, which would dramatically increase the power of an already powerful executive branch.
Of course, Congress long ago acquiesced in the creation of a strong executive, since it could not manage the gumption to resist or to actually legislate. An honest assessment would have to conclude that the administrative agencies we have today stem mostly from Congress’ desire to regulate without actually doing the work of passing very specific legislation. The executive branch has gone along with these developments over the decades because it (1) had some control via appointments and (2) it, too, could allow things to happen that annoyed a lot of people without having to take the direct political heat for them.
The courts also adjusted to this new reality over the last century, up to and including adopting standards like Chevron that allowed them to avoid blame by simply deferring to “expert” agencies. The result has been the creation over the last century of a true fourth branch of government—regulating most of the American economy—that is only indirectly controlled by either Congress or the executive branch.
But all pendulums swing, and this one has been starting to swing back over the last several years. See, for example, the Court’s Loper and Jarkesy decisions. And now, the Trump administration is trying to make the swing a full 180 degrees.
We are, of course, a long way from the relatively simple times of the Constitutional Convention, and there are perfectly fair policy arguments for how we got our current form of governance and why it might be desirable on the policy or political merits. The project to remake that system, if actually accomplished, would leave the world a very different place, for better or worse.
What Comes Next?
The Supreme Court no longer has a majority of jurists who found these historical developments perfectly acceptable. While previous majorities believed in a living, breathing Constitution, today’s majority appears less receptive to that concept and more focused on the Constitution’s text, which does not say anything about the administrative state. The Constitution enumerates three branches of government, each with its own authority, and there is no mention of a possible fourth.
Consistent with that, the Trump administration is clearly seeking to consolidate as much law-enforcement and regulatory power under its control as possible. Whether one thinks it is doing so to improve the federal government’s efficiency or simply to aggregate control probably depends on your politics.
Gaining control over government spending is one way they are chasing this goal; gaining control over the hiring and firing of government employees is another; gaining control over governmental and quasi-governmental entities—ranging from the U.S. Agency for International Development (USAID) to the Kennedy Center—is still another.
And the last and most important goal is to gain control over, or completely absorb, the administrative state. There are only two ways to accomplish this objective:
- Get Congress to pass legislation abolishing the FTC, NLRB, Federal Communications Commission (FCC), etc.; or
- Gain control over the people who run those agencies.
The former seems like a fool’s errand in this era of partisan division. That leaves the latter, which is what the FTC commissioner firings are all about.
The notion that the firings will end the FTC’s “bipartisan” enforcement is a joke, given the last four years and the fact that the DOJ Antitrust Division has long managed to be an effective antitrust agency without “bipartisan” direction.
Nor is it a question of corruption, unless you believe, as one of my friends described it, that it is corrupt simply because the president is corrupt and therefore anything he does is corrupt—a point of view that is more emotional than factual.
No, this is all part of a very aggressive and ambitious plan to restructure the U.S. government. Love it or hate it, one should recognize it for what it is.
If it succeeds, America will function differently—again, for better or worse—and Trump will have made a very big difference. If it fails, I suppose we could sink back to the status quo ante, but I suspect those days are gone forever. Failure of the stretch goals here will likely still leave the American governmental system permanently changed, just not as much as complete success would.
The days of theoretically bipartisan “expert” agencies are gone—or, at least, the days of deference to them are. We haven’t had very good luck with “experts” in recent years; the fallout from that is part of what got Trump elected and why this sweeping effort to reshape the government is likely to succeed, at least in major part (probably not entirely, as there is always overreach).
This is obviously not a trivial undertaking, no matter how much some people want to trivialize it. I suspect it is being done as aggressively and quickly as it is because there is very significant inertia. Many in both the public and private spheres will fight like hell to prevent dramatic change in the status-quo system they created and benefit from. Thus, it is better to move fast and break things than to be more methodical.
But this does not mean it is unplanned. It seems clear to me that there is a macro plan, the apparent chaos notwithstanding (indeed, that may be a feature, rather than a bug).
Of course, even if all goes as the administration would hope, it is going to take a long time to get done. This is a legacy project that will likely occupy Trump’s entire term. But if it does get done, it will be the most consequential change to the U.S. government since FDR’s tenure almost a century ago.
