The Humphrey’s Executor ruling said the FTC was created to be “an independent, non-partisan body of experts, charged with duties neither political nor executive, but predominantly quasi-judicial and quasi-legislative.” The court ruled that President Franklin Roosevelt, who had fired Commissioner William Humphrey, could not fire an FTC commissioner for political reasons.
“When Congress provides for the appointment of officers whose functions, like those of the Federal Trade Commissioners, are of legislative and judicial quality, rather than executive, and limits the grounds upon which they may be removed from office, the President has no constitutional power to remove them for reasons other than those so specified,” the court said in a unanimous ruling.
Supreme Court ruling still in effect
In the DOJ’s recent statement claiming that Humphrey’s Executor does not protect FTC commissioners, Acting Solicitor General Sarah Harris pointed to a 2020 Supreme Court ruling that said the for-cause removal precedent cannot be extended to the Consumer Financial Protection Bureau (CFPB).
Harris said the Department of Justice “determined that certain for-cause removal provisions that apply to members of multi-member regulatory commissions are unconstitutional and that the Department will no longer defend their constitutionality.” The DOJ’s determination applies to the FTC, the National Labor Relations Board, and the Consumer Product Safety Commission, she wrote. The exception recognized in Humphrey’s Executor “does not fit the principal officers who head” those three bodies, she wrote.
“The Supreme Court has made clear that the holding of Humphrey’s Executor embodies a narrow ‘exception’ to the ‘unrestricted removal power’ that the President generally has over principal executive officers,” and that it represents “the outermost constitutional limit” on the president’s power, Harris wrote.
The 2020 ruling cited by Trump’s DOJ doesn’t overturn Humphrey’s Executor, however. “While we do not revisit Humphrey’s Executor or any other precedent today, we decline to elevate it into a freestanding invitation for Congress to impose additional restrictions on the President’s removal authority,” the court said. It found “there are compelling reasons not to extend those precedents to the novel context of an independent agency led by a single Director,” referring to the CFPB.
We contacted the White House about Trump’s decision to fire the commissioners despite Humphrey’s Executor still being in effect and will update this article if it provides a response.
The firings leave the FTC with only two commissioners instead of the typical five. Under US law, an FTC quorum is defined simply as a “majority of the members of the Commission in office and not recused from participating in a matter.”
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