Ousted FTC Commissioners Sue Trump Over Firings

Rebecca Kelly Slaughter and Alvaro Bedoya, the two Democratic commissioners on the Federal Trade Commission who were fired earlier this month by President Donald Trump without a specific cause, are suing Donald Trump and FTC leadership over their oustings. The lawsuit sets up a potential showdown regarding presidential authority as it relates to independent agencies.

Slaughter and Bedoya, who are represented by the nonprofit anti-authoritarian organization Protect Democracy, are seeking back pay and reinstatement to their role on the commission. But more than that, they are hoping to successfully defend Humphrey’s Executor v. United States, a 90-year-old Supreme Court ruling that affirmed FTC commissioners could not be removed at will by the president.

Bedoya told Gizmodo that he received the email informing him of his firing while he was at his daughter’s gymnastics class. “What’s extraordinary about that is that there was no cause given,” he said. FTC statute, which was upheld by the Supreme Court back in 1935, states that commissioners can only be dismissed by the president for one of three reasons: inefficiency, neglect of duty, or malfeasance in office.

None of those were provided in the dismissal of Bedoya or Slaughter. Instead, the termination letters stated the commissioners’ service at the FTC was “inconsistent” with the Trump administration’s priorities.

Part of the reason for that decision by the Trump administration may be to challenge the ruling in Humphrey’s Executor v. United States, which could open the door for the at-will removal of other commissioners on agencies that were designed to operate independently.

“By firing the commissioners, the President is engaging in an illegal attempt to strip Congress of its power. If accepted, any future President, whether Republican or Democrat, could wield these powers to punish enemies and reward friends,” Jared Davidson, counsel at Protect Democracy, told Gizmodo. “The consequences are not abstract. They are not theoretical.”

Davidson explained that the FTC is part of a constellation of independent agencies created by Congress, all designed in a similar fashion with similar removal protections that, in theory, should insulate commissioners from being removed without cause.

Bedoya said that it didn’t occur to him at first that the aim of the administration in firing him and Slaughter may exceed just the president’s control over the FTC. Humphrey’s Executor applies specifically to the FTC, so attacking the protections of the commissioners serves as a logical entry point for challenging the law. But it has implications beyond the agency.

“Here’s the key thing, though. It’s not just us that have this language,” Bedoya said. “If the President can break this 90-year-old norm in the American legal system, that doesn’t just matter to us [at the FTC]. It matters to the Federal Reserve, the Securities and Exchange Commission, any number of other agencies.”

“That’s when I realized they’re not just trying to remove us. They’re trying to break precedent for everyone,” he said. As Davidson pointed out, it has implications for the Federal Reserve and other agencies, too.

“If the president’s logic is accepted and he is able to fire members of the FTC at will, there is no principle basis for distinguishing the Federal Reserve whatsoever,” Davidson said. “It opens the floodgates for the president to be able to fire commissioners who historically have exercised insulation and independence.” In the case of the Fed, Davidson said, “The president will be able to directly control monetary policy in ways that may have short-term political benefits for the president but have long-term devastating consequences for the American people.”

Project 2025, the political playbook put together by the conservative Heritage Foundation to serve as a guide for the next Republican administration to consolidate executive power, explicitly calls out Humphrey’s Executor as a precedent worth challenging. “The next conservative Administration should formally take the position that Humphrey’s Executor violates the Constitution’s separation of powers,” the document states, describing the law as “ripe for revisiting—and perhaps sooner than later.”

The Trump administration has removed other appointees at agencies—including a member of the National Labor Relations Board, who was eventually reinstated after the Trump administration’s actions were struck down as unlawful by a federal judge, though the Trump administration has appealed the decision. But the firing of the FTC commissioners is the most direct attack on Humphrey’s Executor yet, and it seems the intent of the Trump administration is to get the Supreme Court to revisit the protections granted by the law.

It will likely have at least a couple of sympathetic justices should its challenge reach the highest court. In a 2020 decision related to the Consumer Financial Protection Bureau, Justice Clarence Thomas wrote in his opinion, “The decision in Humphrey’s Executor poses a direct threat to our constitutional structure and, as a result, the liberty of the American people.” Justice Neil Gorsuch joined that opinion.

In the meantime, the FTC, one of the agencies at the forefront of consumer protection, is hampered in some of what it can do—and extremely slanted in the actions that it can still take. There are currently only two commissioners sitting on the board, which usually consists of five: Chairman Andrew Ferguson and Commissioner Melissa Holyoak, both Republicans.

Davidson explained that three commissioners are needed for a quorum, which does limit what the agency can do. But, Bedoya warned that the remaining commissioners could choose to end cases that the agency was previously pursuing, including examining privacy rules that apply to Meta and challenging how Amazon treats small businesses that operate on its platform.

More importantly, Bedoya says, is the fact that his firing—should it stand—opens up the possibility that the President could effectively decide the outcome of these cases instead of the FTC. “In a world where any of us can be removed for any reason at any time, it doesn’t matter what commissioners think,” he explained. “They can obey and stay or they can not and see what happens to them.”