Cadwalader counsel Bilal Sayyed spoke with Global Competition Review about the Department of Justice's challenge to precedent that prohibits the White House from firing Federal Trade Commission members without wrongdoing in an article, "DOJ challenges FTC's independence," published February 13.
The DOJ has signaled that the Trump Administration will likely argue for the Supreme Court's 1935 ruling in "Humphrey's Executor" to be overturned, which would allow the president to remove FTC officials without a finding of "inefficiency, neglect of duty or malfeasance in office".
Bilal said the loss of removal protections would further erode the difference between the FTC and the Antitrust Division – possibly empowering efforts to consolidate competition enforcement to a single agency. He added that the multi-member structure was designed to lessen the impact of administration changes and ensure independence from the president distinct from the DOJ.
"If the president can remove members without cause, then they're no longer independent," Bilal said. "The less different they are the less need there is for two."
Read the full article here.