Trump FTC Chair Backs Undoing Commission-Firing Protections (1)

Federal Trade Commission chairman Andrew Ferguson called for eliminating legal protections that prevent presidents from firing commissioners at federal agencies, including the FTC, without cause.

Ferguson’s call came days after the acting solicitor general revealed the Justice Department will ask the high court to overturn a 90-year-old Supreme Court ruling that established such protections.

“The acting SG is right,” Ferguson said in a statement on X. “Shielding powerful bureaucrats from political accountability is deeply anti-democratic.”

The FTC didn’t immediately respond to a request for further comment.

The 1935 Supreme Court decision in Humphrey’s Executor v. United States bars presidents from firing members of multimember commissions without cause such as inefficiency or neglect.

It is regarded by legal scholars as a ruling that laid a foundation for the modern administrative state. It has been met with criticism by some conservative justices, including Clarence Thomas, who in a 2020 opinion called it “a direct threat to our constitutional structure.”

In the first days of his second White House term, President Donald Trump fired National Labor Relations Board member Gwynne Wilcox, who served as chair of the agency in the Biden administration’s final days and was slated to remain on the board until 2028.

Wilcox sued over the firing, setting up a test for the precedent, following a series of decisions from the Supreme Court reining in regulators’ independence.

Sarah Harris, the acting solicitor general, revealed the DOJ’s plans in a Feb. 12 letter to Sen. Dick Durbin (D-Ill.), the ranking Democrat on the Senate Judiciary Committee.

The department concluded the removal protections unconstitutionally interfere with the president’s ability to supervise officers executing laws on their behalf, Harris said.

FTC Impact

Trump tapped Ferguson, who had been a Republican member of the FTC since April 2024, to lead the agency after his inauguration. Before joining the agency, his background included clerking for Thomas and serving as counsel for Sen. Mitch McConnell (R-Ky.).

In October, Ferguson got into a spat with the Democratic majority after issuing a statement arguing that certain firing protections for FTC administrative law judges were unconstitutional.

The new positions from the DOJ and Ferguson raise questions about the potential status of ongoing actions, said Daniel Crane, a University of Michigan law professor. The FTC has increasingly faced constitutional challenges from companies it’s sued.

“One of the lurking questions about which SCOTUS jurisprudence is unclear is what’s the remedy if the anti-removal protections of FTC commissioners are suddenly declared unconstitutional,” Crane said in an email.

The pharmacy benefit manager units of CVS Health Corp., Cigna Group, and UnitedHealth Group Inc. in November sued the agency, claiming its in-house case over rising insulin costs was unconstitutional.

They argued, among other things, that commissioners are unlawfully shielded from presidential removal, and that, because the FTC’s structure flouts the Constitution, its law enforcement actions are “invalid.”

Cigna’s Express Scripts also cited the presidential removal protections for commissioners in a separate lawsuit alleging defamation by the FTC in an interim report on pharmacy benefit managers.

The Justice Department, arguing on the FTC’s behalf, pushed to dismiss the suit in a Thursday court filing, while acknowledging its changed positions on removal protections.

“Accordingly, the department will not continue to press the merits defense of those protections in this action,” the DOJ said in its brief.

Still, DOJ lawyers argued that the lawsuit “fails to show that the challenged removal protections had any effect on the interim report,” which it claims is required under other Supreme Court precedent.