President Donald Trump dismissed Alvaro Bedoya and Rebecca Slaughter last month as members of the Federal Trade Commission (FTC), citing his authority under Article II of the U.S. Constitution. The two former commissioners responded that the dismissals were illegal and that they would sue for reinstatement. It is likely that, after all the litigation dust clears, the U.S. Supreme Court will uphold the president’s right to dismiss heads of independent agencies that exercise some executive power, such as the FTC. Such a holding could well promote greater political accountability for federal executive actions.
Background
Article II, Section 1, Clause 1 of the Constitution—the “Executive Vesting Clause”—vests all “the executive power” of the federal government in a single person, the president of the United States.
Furthermore, Article II, Section 3’s “Take Care Clause” requires that the president “take care that the laws be faithfully executed.” This means that president is solely responsible for overseeing enforcement of the laws. To do so successfully, he or she arguably must be able to dismiss subordinate officials who do not share his or her perspective on how to apply the laws.
This view was supported by distinguished constitutional scholars Steven Calabresi and Christopher Yoo in a 2008 book that argued the president has plenary “power to remove and direct all lower-level executive officials.” On the other hand, respected scholars Cass Sunstein and Adrian Vermeule have written that, while the president “must have substantial ability to remove and supervise all those who execute federal law,” with regard to independent agencies, Congress could limit presidential removal to cases of “neglect of duty” (meaning “frequent or repeated disrespect for legal standard”).
The Progressive Era move to create “independent agencies,” beginning over a century ago, limited the president’s oversight responsibilities. Such agencies often have certain features in common. These include being headed by a board of commissioners from different political parties serving for staggered fixed terms, who can only be removed by the president “for cause” (“inefficiency, neglect of duty, or malfeasance in office”).
The Progressives believed that these restrictions would allow independent experts to successfully carry out important specialized governmental duties, based on the merits and free from political interference. That Progressive ideal has two serious problems:
- By limiting presidential oversight, it is in tension with the American constitutional structure, as currently understood by the Supreme Court.
- It is based on a flawed view of reality.
Removal Restrictions – The Supreme Court Speaks
The Supreme Court directly confronted removal restrictions in two cases nearly 90 years apart. If the Supreme Court addresses the question again, it is likely to hold that leaders of independent agencies that have some executive functions can be fired by the president for any reason.
The 1935 decision in Humphrey’s Executor v. United States involved a challenge to President Franklin Roosevelt’s firing in 1933 of Republican FTC Commissioner William Humphrey, based solely on policy reasons. The Supreme Court unanimously held that the FTC Act’s for-cause removal restrictions were valid, because the FTC “cannot in any proper sense be characterized as an arm or an eye of the executive.” Instead, the commission was created to carry out “quasi-legislative” and “quasi-judicial” powers. In so holding, the court also implied that the president could freely remove executive officers.
Humphrey’s Executor appears dated. The Supreme Court majority has placed greater emphasis on defending the separation of powers in recent years, including defense of presidential prerogatives.
In 2020’s Seila Law LLC v. Consumer Financial Protection Bureau (2020), the 5-4 majority opinion by Chief Justice John Roberts held that the “independent” CFPB’s “leadership by a single Director removable only for inefficiency, neglect, or malfeasance violates the separation of powers.” Thus, the CFPB director, whose agency possesses executive-enforcement functions, could be removed by the president for any reason.
Significantly, the Seila Court also specified an exception to the president’s untrammeled removal power:
Congress may grant for-cause removal protection to a multimember body of experts who [are] balanced along partisan lines, appointed to staggered terms, perform[] only “quasi-legislative” and “quasi-judicial functions,” and [a]re said not to exercise any executive power.
The opinion stressed that, unless he or she could freely dismiss executive officials, “the President could not be held fully accountable for discharging his own responsibilities; the buck would stop somewhere else.”
The Seila exception plainly indicates that any exercise of executive power by independent agency leaders subjects them to being fired for any reason. The modern FTC has long exercised substantial executive power by prosecuting countless antitrust and consumer-protection cases. It clearly does not fall within the Seila exception. The five justices who comprised the majority in Seila (Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh) are still on the Court. Thus, today’s Supreme Court would most likely uphold Trump’s firing of Bedoya and Slaughter.
The president also recently fired various other senior “independent agency” officials, prompting the filing of multiple lawsuits. This suggests that the Supreme Court will be grappling with the constitutionality of limitations on the presidential removal power sooner rather than later.
Let’s Get Real – The Independent Agency Myth
Respected scholars increasingly have questioned the justification for having independent agencies of “experts” exercise government power. A 2023 Cornell Law Journal article by Neal Devins and David E. Lewis analyzed a survey of more than 5,000 political and career executive branch and independent agency department heads and supervisors during the Obama and first Trump administrations, finding:
Contrary to the goals and assumptions of Progressive Era designers, independent agencies are not particularly expert, influential, or independent. Indeed, the very touchstones of today’s politics – party polarization and presidential unilateralism – cannot be squared with Progressive Era assumptions about both independent agency decision-making (including that agency decision-making is expert, apolitical, fact-based, and durable) and the willingness of political actors to support independent agency decision-making.
The Biden FTC Legacy
Devins & Lewis is only one study, but it is consistent with the FTC’s performance during the Biden administration.
Under former Chair Lena Khan, FTC policy (reflected in public statements, guidelines, proposed regulations, and cases) abandoned a longstanding bipartisan consensus that favored a fact-based, economic, and consumer-welfare approach to antitrust enforcement.
The FTC’s new “neo-Brandeisian” policy instead centered on such concerns as combatting bigness, promoting fairness, protecting small businesses, and advancing labor interests.
Khan’s chairmanship was totally at odds with the Progressive Era vision of independent agencies. It was political, following guidance in President Joe Biden’s 2021 “Executive Order on Competition.” It was also highly partisan, involving numerous 3-2 votes that followed party lines.
It ignored economic and legal expertise in key initiatives—in issuing, for example, its “Unfair Methods of Competition Policy Statement” and a rule banning noncompete clauses in labor contracts. And it was neither fact-based nor durable, as shown by the FTC’s noncompete rule.
In short, the Khan FTC followed presidential guidance to a tee. Therefore, complaints that President Trump’s firing of Commissioners Bedoya and Slaughter create a “partisan, politicized FTC” appear to ring hollow.
Near the end of the Biden administration, Bedoya, Slaughter, and then-Chair Khan voted successfully to file two antitrust lawsuits opposed by Republican Commissioners Andrew Ferguson (now the FTC’s chairman) and Melissa Holyoak. This and other examples showed Bedoya, Slaughter, and Khan were “attempt[ing] to tie the hands of the incoming Trump administration.”
Accordingly, the firings look like presidential actions to ensure that the FTC executes the law in a manner consistent with administration policy, just as it did under President Biden. This objective is fully in line with the Constitution.
The Outlook – Greater Accountability
Independent federal enforcement agencies that exercise executive power, such as the FTC, probably will be subject to heightened presidential oversight of their leadership and policymaking.
Some critics are concerned that this would lead to “greater politicization” of independent agencies, but those agencies already respond to political incentives.
The contrary argument is that stronger presidential oversight gibes with American constitutional principles and would ensure greater political accountability to the voters for all of an administration’s initiatives. This would, it is contended, simply be good government.
