On March 18, 2025, President Donald Trump purported to dismiss Commissioners Rebecca Kelly Slaughter and Alvaro M. Bedoya from their seats on the Federal Trade Commission (FTC) without cause and prior to the expiration of their terms. His actions contravened Section 1 of the FTC Act, 15 U.S.C. § 41, which provides that “[a]ny Commissioner may be removed by the President for inefficiency, neglect of duty, or malfeasance in office,” and rested upon the bare assertion that he was exercising his authority under Article II of the Constitution.
The President’s assertion of authority to treat the Commissioners as “at will” employees of the Executive deliberately challenged the constitutionality of the “for cause” termination provisions of Section 1 and other similar statutes. By design, it also provoked the affected Commissioners to challenge the Administration’s action in federal court, where the Administration intends to invite the Supreme Court to reconsider Humphrey’s Executor v. United States, 295 U.S. 602 (1935). In Humphrey’s Executor, the Court rejected a similar constitutional challenge to the FTC Act’s protection against removal of commissioners except for good cause.
The attempted dismissals of the two Democratic Commissioners implicates more than the “for cause” constraints on presidential removal powers under the FTC Act, or the relative independence of the agency from political interference in its decision-making. They are instead an outgrowth of a broadly conceived and long-planned effort by the Administration to expand the Executive’s power to control what has derisively been labelled the “administrative state,” especially with respect to the “independent” federal administrative agencies. Other relevant steps in this campaign include the Administration’s attempt to shrink the federal government and assert plenary presidential authority over the entire federal civil service, placing a wide range of personnel decisions beyond the reach of judicial review.
The Administration revealed its aims in a February 18, 2025, Executive Order titled “Ensuring Accountability of All Agencies,” and in repeated efforts to dismiss commissioners and members of other federal multi-member boards. And a February 12, 2025 letter to Senator Richard J. Durbin from the then Acting Solicitor General of the Justice Department left no doubt of its view of Humphrey’s Executor: “I am writing to advise you that the Department of Justice has determined that certain for-cause removal provisions that apply to multi-member regulatory commissions are unconstitutional and that the Department will no longer defend their constitutionality.” The letter went on to refer to the FTC Act and Humphrey’s Executor.
Collectively, these actions seek to implement a charged version of the “Unitary Executive Theory,” which posits that the president possesses sole and plenary authority over the Executive Branch. The theory argues that the president’s authority must, as a constitutional matter, include unencumbered removal power. Its proponents contend that the theory has roots in the Constitutional Convention and historical practice, yet their arguments ultimately rest on inference and political theory. The Constitution provides for the president’s authority to appoint commission members (with Senate approval) but is entirely silent about removal. The theory thus depends upon structural arguments about the proper distribution of authority within the government.
Critics note this lack of textual support, point to contrary history, and argue that the current version of the Unitary Executive Theory is a more recent construct, first developed and advocated in its modern form during the Reagan Administration. Embraced by Project 2025, which includes a dedicated discussion of the FTC, it is the theoretical basis for the Administration’s effort to impose greater presidential control over administrative agencies. The campaign focuses heavily upon the “independent agencies,” which, like the FTC, are defined, in part, by “for cause” protections for their board members to provide them with a degree of insulation from political interference.
The independent federal agencies will not be the sole casualties if the effort succeeds; they are merely the immediate targets. If the Supreme Court embraces the Unitary Executive Theory without qualification, it will transfer substantial additional power to the president and deprive Congress and future presidents of a valuable approach to collaborative governance that the Nation has employed broadly for more than a century. As Justice Kagan’s dissent in Seila Law observed, it would “commit the Nation to a static version of governance, incapable of responding to new conditions and challenges.” Among other effects, this move will diminish the country’s capacity to respond effectively to special challenges posed by the fast-expanding role that digital technology plays in the economy.
The Administration would welcome such a reallocation of powers; indeed, it is the motivation for its actions and its ultimate objective. The Administration assigns primacy to a siloed conception of the three branches of the federal government that is integral to the Unitary Executive and other, related theories. Under the silo postulate, the administrative agencies are extra-constitutional – an unauthorized “fourth” branch of government. It also denigrates the public administration model that views shared authority and collaboration between Congress and the Executive as essential to effective governance.
In the case of the FTC and other similarly structured agencies, the debate reduces to a single assertion: separation of powers dictates that the president must have plenary authority to remove any Commissioner without cause and without regard to their statutory term. The removal power is claimed to be absolute, regardless of the institutional design agreed to by Congress and accepted by previous presidents. By statute, that design specifies the make-up of the FTC, the terms and duration of appointments of commissioners, and the prerequisites for removal. In accordance with the Constitution, it also establishes an appointment process that requires Senate approval of Commissioners nominated by presidents.
These and other measures that limit Executive authority reflect a well-considered assessment of the appropriate allocation of tasks between the Congress and the Executive – and they are firmly anchored in the Constitution. As we describe more fully below, the original design of 1914 and its subsequent amendments still give the Executive significant control over the operation of the FTC. At issue in the debate today is not whether the Executive has any control over these institutions (it does); the question is whether that control must be unqualified.
The Administration argues that Section 1 of the FTC Act is unconstitutional because it allegedly encroaches on this President’s Executive prerogative. But President Woodrow Wilson and his advisors played a central part in designing the Commission and signed the FTC Act into law rather than veto it. The basic model of public administration that the FTC Act adopts has received the support of subsequent presidents who approved major amendments to the Act. Moreover, the demand for still greater Executive control ignores the president’s existing capacity to influence the institution’s operations. The president’s political party typically controls three of the Commission’s five seats. The president alone has the authority to nominate FTC Commissioners, who have staggered terms so that every president is likely to have opportunities to nominate its members. And the president proposes the agency’s annual budget to Congress.
The individual non-Chair FTC Commissioners exercise virtually no “Executive” power on their own. That power lies in the hands of the Chair, and the president alone has the authority to designate the Chair, who serves in that role at will. By statute and regulation, the FTC Chair is the chief executive of the Commission and has complete authority to designate the agency’s senior leadership and manage its various Bureaus and Offices. The Administration contends that these instruments of influence are inadequate, that the Constitution also mandates plenary removal power of non-chair Commissioners.
In this paper, we argue that “independent” is a misleading description of the relationship of the FTC to the political process. Even when viewed through the lens of 2025 instead of 1935 when Humphrey’s Executor was decided, the agency is subject to extensive oversight and control by both the president and Congress. As the Commission’s authority has expanded since 1914, so too have the controls by which Congress and the Executive oversee and influence its operations. This framework, as it has evolved over 110 years, does not “unduly interfere with the functioning of the Executive Branch.” It is democratically accountable in numerous ways to both the Congress and the Executive. The organization, procedures, and individual actions of the Commission, including the constitutionality of its structure, are also fully accountable to the federal courts.
As a policy matter, Section 1 of the FTC Act remains vital to the credibility, integrity, and effectiveness of FTC decision-making and the protection of American consumers. Its consumer protection authority is unmatched in the federal government, and its importance for the U.S. economy has only increased over time. With respect to its competition mission, the FTC also provides added institutional capacity, a wider range of tools, and expertise to complement the work of the Antitrust Division of the Justice Department. Subject to judicial review, the Commission has made major contributions to the development of important foundations of antitrust doctrine.
Moreover, the FTC’s structure is one of its key virtues. For more than a hundred years, the FTC’s bipartisan structure has facilitated collaborative decision-making, allowed for dissent, and helped to build the agency’s expertise and reputation. One properly can criticize the FTC for failing to fulfill all the expectations that led Congress to create the agency in 1914. There is no basis to assert, however, that the agency has encroached on the prerogatives of the president. Its limited “independence” should not be sacrificed in the service of a debatable, formalistic interpretation of the Constitution and an activist political agenda.
