The FTC is an independent agency, and the president cannot simply fire its commissioners. To say otherwise amounts to Federalist Society fanfiction, posted to Tumblr with the #AlternateUniverse tag.
That is, until SCOTUS agrees with the fanfiction.
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On Tuesday, the president of the United States fired the Democratic commissioners of the Federal Trade Commission in clear contravention of what has been the law since 1935.
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What Trump did on Tuesday was wackadoodle beyond belief. It violated Supreme Court precedent from 1935 —
Humphrey’s Executor v. US, a case that is literally about the limits of presidential power when it comes to firing FTC commissioners. The White House has good reason to know this, not just because it employs lawyers who have, presumably, taken first-year classes at law school, but also because the acting solicitor-general has said the Justice Department is going to try to overturn
Humphrey’s Executor; the current Republican chair of the FTC has also said outright that
Humphrey’s Executor is wrong.
On top of everything else, by statute, only three members of the FTC can be from the same party, and there were already three seats for Republican commissioners. If Trump ends up trying to replace the two Democratic commissioners with more Republicans, he’ll have done something doubly illegal.
The Verge
And he won't give a shit.
The FTC is an independent agency, and the president cannot simply fire its commissioners. To say otherwise amounts to Federalist Society fanfiction, posted to Tumblr with the #AlternateUniverse tag.
[...]
It’s inevitable that SCOTUS must chime in at some point; at least one commissioner has stated that he intends to sue. The court has already hinted in a 2020 decision that it’s ready to overturn Humphrey’s Executor.
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But there are no facts in dispute when it comes to the firings of Alvaro Bedoya and Rebecca Kelly Slaughter. There is not even a dispute about whether specific cases or laws are applicable for this situation versus others. The only thing that is in dispute is whether Humphrey’s Executor is valid law. And this SCOTUS — stacked with three Trump-appointed justices — has shown all-too-ready willingness to overturn long-standing precedent, like Roe v. Wade and Chevron. Its deference to Trump, specifically, and the court’s permissive treatment of the January 6 insurrection is even more alarming.
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That’s the rub: we live in what is left of our society after Trump v. US, where the Supreme Court expanded presidential immunity to an outrageous, insensible degree. The things the president does in his official capacity as president are not crimes; it is increasingly clear that the Trump administration has taken this to mean that law isn’t real. US Customs and Border Protection is flouting court orders to halt deportations; Pam Bondi is on television saying judges have “no business,” “no right,” and “no power” to tell the executive branch what it can and cannot do. Meanwhile, the case of the FTC commissioners pushed the basic craft of journalistic writing to its limits.
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For years, we’ve been steadily updating readers on the changing face of law and the erosion of once-reliable standards like the Chevron doctrine. It’s important to know that the law isn’t an all-powerful and static rulebook; it works only as well as the government that upholds it.
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What the Trump administration is doing is beyond abnormal. The Supreme Court, too, has enabled and fueled the downward spiral, upending bedrock principles of how we organize our society and blowing up the predictive value of the law as we know it. And if our headlines don’t convey this existential fact to you, the reader, then we’re still writing our headlines wrong.
