Archived copy: Democratic FTC members file suit challenging their firing by Trump - The Washington Post

Rebecca Slaughter, one of two Democratic commissioners dismissed from the Federal Trade Commission this month, testifies on Capitol Hill on Wednesday as her fellow ex-commissioner, Alvaro Bedoya, sits behind her. (Mattie Neretin/Sipa USA/Reuters Connect)

The lawsuit sets up a court battle over the extent of presidential authority that legal experts expect will ultimately reach the Supreme Court. At stake is the future of not only the FTC but also several other agencies whose members have historically enjoyed the same independence from White House control, possibly including the Federal Reserve Board.

Bedoya and Slaughter said Trump’s actions damaged the integrity of the board and threatened its work protecting consumers.

In a statement, Bedoya said the FTC had blocked a big grocery merger last year over concerns about its effect on prices and wages, “even though some elected officials on both sides of the aisle wanted us to let it go through.”

“If the President can fire us for no reason, at any time, what’ll happen with the next merger like that?” he said. “Will … it all come down to a question of political donations? And who benefits from this? Because it isn’t regular people trying to pay their bills.”

In a statement posted on X on Thursday, FTC Chairman Andrew Ferguson said Trump has the “constitutional authority” to remove the commissioners, a power he said is “necessary to ensure democratic accountability.”

“My Democrat former colleagues are entitled to their day in court, but I have no doubt that President Trump’s lawful powers will ultimately be confirmed,” he added.

Since taking office in January, Trump has dismissed Democratic board members at several independent agencies, including the Equal Employment Opportunity Commission and the National Labor Relations Board. Some of those officials have challenged the firings in cases expected to reach the Supreme Court. A federal judge in Washington this month ordered NLRB Commissioner Gwynne Wilcox reinstated to the board, in a ruling the Trump administration has appealed.

Some legal experts say the case of the fired FTC commissioners presents a perfect test on overturning a 1935 Supreme Court precedent that bars the president from dismissing members of independent commissions over policy differences. The case, Humphrey’s Executor v. United States, concerned an FTC commissioner fired by President Franklin D. Roosevelt. The court ruled unanimously that the firing was unjustified and that the Constitution does not give the president “illimitable power of removal.”

“This lawsuit isn’t just about the FTC,” said Douglas Farrar, a former senior official at the agency. “It’s about agencies like the [Securities and Exchange Commission] and the Fed that were designed to provide transparent and predictable rules for market participants. If the courts don’t uphold nearly a century of precedent, regulators in this and future administrations will use their power for politically motivated enforcement against American businesses big and small.”

The FTC typically has five commissioners who serve seven-year terms, and no more than three can be from the same party. Under President Joe Biden, Democrats held the majority, and Democratic FTC Chair Lina Khan led an aggressive push to strengthen and enforce antitrust rules against Big Tech companies and other large corporations. The agency also oversees online privacy.

Khan stepped down in January, and Trump named Ferguson, who had been a Republican commissioner, as chair.

In recent years, the Supreme Court has laid some legal groundwork for presidents to remove the leaders of certain independent agencies. Conservatives have advocated the “unitary executive theory,” which sees the Constitution as granting the president full control over executive agencies.

Republicans were poised to hold the majority on the FTC even with Bedoya and Slaughter on the commission. Trump’s move to fire them signaled an intent to “obliterate dissent,” William Kovacic, a former Republican FTC chair and a law professor at George Washington University, said at the time.

On Wednesday, House Democrats used a hearing convened by Republicans on online child safety to decry Trump’s FTC power play, inviting Slaughter as their witness. Rep. Frank Pallone Jr. (D-New Jersey) called the dismissals of Slaughter and Bedoya “outrageous, unlawful and unconstitutional.”