AP Photo
FTC commissioners Rebecca Kelly Slaughter, left, and Alvaro Bedoya
Alvaro Bedoya and Rebecca Kelly Slaughter, two commissioners on the Federal Trade Commission, have filed suit in federal court against Donald Trump’s attempt to fire them last week, arguing that the action was “in direct violation of a century of federal law and Supreme Court precedent.”
Filed in U.S. District Court in D.C., the suit sets up a long-awaited battle over executive power. The Trump administration has rather explicitly fired Bedoya, Slaughter, and other Democratic members of bipartisan commissions throughout the government in a bid to centralize power in the president.
Bedoya and Slaughter cite Humphrey’s Executor v. United States (1935), which barred President Roosevelt from firing an FTC commissioner without cause (specifically, as per the FTC statute, “inefficiency, neglect of duty, or malfeasance in office”). But the case reaches back further, to the similar protections for independent commissioners embedded in the 1887 establishment of the Interstate Commerce Commission, and even all the way to the Sinking Fund Commission, created by the very first Congress and signed by President Washington, whose members could not be dismissed by the chief executive.
These tenure protections were granted to FTC commissioners to provide “greater independence, and its decisions, coming from a board of several persons, will be more readily accepted as impartial and well considered,” according to the Senate report on the Federal Trade Commission Act, which is mentioned in the lawsuit.
The lawsuit delivered more details about the attempted firing message from Trump, which did not cite any dereliction of duty. It merely said, “Your continued service on the FTC is inconsistent with my Administration’s priorities. Accordingly, I am removing you from office pursuant to my authority under Article II of the Constitution.” Humphrey’s Executor was also mentioned, but Trump claimed it “does not fit the principal officers who head the FTC today” because “the FTC exercises substantial executive power.” This is consistent with the argument in Project 2025 for overturning Humphrey’s Executor.
The message referred to the FTC as “An independent agency [that] has ‘no basis in history and no place in our constitutional structure.’” But that quote, from a 2020 Supreme Court case, was about a different agency, in particular the Consumer Financial Protection Bureau, which does not have a multimember commission but a single director. In that case, Seila Law, the Court did allow presidents to fire single directors at federal agencies at will; but the case expressly declined to extend that to multimember commissions, saying explicitly, “[W]e do not revisit Humphrey’s Executor or any other precedent today.”
The possibility that the Humphrey’s Executor precedent will be maintained may hinge on the Federal Reserve.
Trump is not the only defendant. The lawsuit also charges Andrew Ferguson and Melissa Holyoak, the two remaining Republicans on the FTC, as well as FTC executive director David Robbins, for cutting Bedoya and Slaughter off from their email and depriving them of their laptops and other technology, denying them access to their offices, and placing their staffs on administrative leave.
Indeed, Bedoya told me on the podcast I co-host, Organized Money, that on the day after the alleged firing he had intended to travel to Colorado to speak at a legislative hearing, but he had to do it virtually because he was locked out of his office. Later that week, he did go to Denver to speak to over 30,000 people as part of Bernie Sanders and Alexandria Ocasio-Cortez’s “Fighting Oligarchy” tour.
Ferguson publicly backed up Trump after the alleged firings, calling them “necessary to ensure democratic accountability for our government.” But the lawsuit amusingly cites an episode of the Odd Lots podcast that came out the day before the firings, where Ferguson argues for the “benefits in certain circumstances to having multimember agencies with people from both parties … if you have an agency that is exceeding the law, abusing the companies that it purports to regulate, it’s helpful for markets, for courts, for litigants, for government transparency, to have people on the other party pointing this out and saying it in dissents … I think that that adds value.”
Bedoya and Slaughter are asking for reinstatement to the FTC, for back pay, and for an injunction against Ferguson, Holyoak, and Robbins, so they no longer prevent the Democrats from carrying out their duties at the agency.
The case is almost certain to reach the Supreme Court, or to be folded in with a similar case against the alleged firing of the chair of the National Labor Relations Board, which is already at the appeals court stage. The Trump administration is outwardly confident that the Supreme Court will overrule the Humphrey’s Executor precedent. But the possibility that it will be maintained may hinge on the Federal Reserve.
Like the FTC, the Fed is a multimember body with governors appointed by the president, who have the same protections as FTC commissioners, able only to be fired “for cause.” Justice Samuel Alito, in a footnote to a separate Supreme Court case, weakly tried to justify treating the Fed differently because it’s a “unique institution with a unique historical background” that “should be regarded as a special arrangement sanctioned by history.” This is “the legal equivalent of a t-shirt they sell at the beach that says ‘I’m the Mommy that’s why,’” as Matt Stoller put it, and it’s unclear whether the justices with slightly more capacity for shame would go along with it.
The bigger point is that the Court would be unlikely to hand over power to fire Fed commissioners to Trump, because it would cause a world-historical freak-out on Wall Street. Yet trying to draw a nonexistent distinction between the Fed and other multimember agencies would make the Court look preposterous. Maybe that would still happen, but the justices would likely be far more comfortable punting the whole thing away so they don’t have to get to the question.
That possibility is just what could get Bedoya and Slaughter their jobs back.
A final note: the lawsuit spends three pages citing all of the achievements Bedoya and Slaughter were part of during Lina Khan’s tenure at the FTC. Whether these two highly credentialed policymakers work at the FTC or not, they’re likely going to be fine. It’s the people directly impacted by those achievements—the farmers who can’t repair their own tractors, the patients who can’t afford lifesaving medications, the renters being exploited with deceptive junk fees, the rideshare drivers lied to about potential earnings and working for a pittance, and more—who have the most to lose from this case’s outcome.
