The End Of Independent Days: SCOTUS Expands Presidential Control Over The FTC And Other “independent” Federal Agencies

Background

Under the FTC Act, which created the FTC in 1914, the Commission is to consist of five Commissioners, appointed by the President with advice and consent of the Senate. The President appoints the Chairman of the agency from the Commission’s membership. No more than three Commissioners may be members of the same political party, and Commissioners serve seven year terms.¹ The FTC Act’s provision that a Commissioner may only be removed by the President for “inefficiency, neglect of duty, or malfeasance in office” was upheld by the Supreme Court in Humphrey's Executor v. United States, 295 U.S. 602 (1935).

On March 18, 2025, President Donald Trump fired the FTC's two Democratic Commissioners, Rebecca Kelly Slaughter and Alvaro Bedoya, without identifying a cause under the FTC Act. The firings set the stage for a protracted Court battle over the extent of control that the Executive branch has over independent agencies. In response to the firings, FTC Chair Andrew Ferguson released a statement saying that he has “no doubts about [President Trump]’s constitutional authority to remove Commissioners” because the President “is the head of the executive branch and is vested with all of the executive power of our government.” On March 27, 2025 former Commissioner Slaughter filed a lawsuit challenging her firing, arguing that the President's Article II power is not unlimited, and that Humphrey's Executor should not be overturned.

Supreme Court finds that the President’s Article II power extends to control over FTC Commissioners

In Trump v. Slaughter, the Court voted 6-3 along party lines that FTC Commissioners should not enjoy for-cause removal protection. Writing for the majority, Chief Justice John Roberts argued that, because the modern FTC has accumulated “vast rulemaking, enforcement, and adjudicatory powers under more than 80 statutes”,² the agency exercises executive power and is under the control of the President. The Court reasoned that, because Article II states that the President “shall take Care that the Laws be faithfully executed”,³ the President “must have the ability to remove principal officers who exercise power in his name.”⁴ The Court found that the framework established in Humphrey’s “has not withstood he test of time” and was “tethered to a highly circumscribed view of the FTC’s role.”⁵ Accordingly, the Court ruled that the FTC’s for-cause removal provision violates the Constitutional separation of powers.

Practical implications

In the near future, the Court’s decision will have little effect on the day-to-day operations of the FTC or on most of the FTC’s enforcement decisions. The agency has been operating with only two Republican Commissioners, Chair Andrew Ferguson and Commissioner Mark Meador, since early in President Trump’s second term, and even with just two Commissioners, the FTC still has a quorum to take action on most matters.⁶

In the longer term, the decision has significant implications for not only the independence of the FTC, but of any other federal agencies deemed to engage in executive functions as defined by the Court in Trump v. Slaughter. In the case of the FTC, the Court has effectively made it easier for agency leadership to engage in a partisan agenda without having to address any countervailing arguments posited by Commissioners from the minority party. With respect to antitrust enforcement, the FTC has arguably been operating on a more partisan basis since the Biden administration, when former Chair Lina Khan worked to effectuate a progressive enforcement agenda that embraced a broader view of competitive harm that was not tied to the traditional consumer welfare standard. Chair Khan, however, still had to contend with the dissenting opinions of her Republican colleagues, and she was somewhat insulated from any attempts by the White House to influence the outcome of any individual investigations or cases. By allowing the President to remove FTC Commissioners at-will, the Court has removed any potential friction that agency leadership might have faced in their efforts to reshape antitrust enforcement policy.

Footnotes

^{1 5 U.S.C.A. § 41.}

^{2 Trump v. Slaughter, No. 25-332, slip op. at 12 (U.S. June 29, 2026) at 1.}

^{3 U.S. Const. art. II, § 3.}

^{4 Trump v. Slaughter at 1.}

^{5 Id. at 4.}

^{6 While the FTC Act is silent on what constitutes a quorum, according to a 2005 amendment to the FTC’s Rules of Practice, a quorum is defined as a “majority of the members of the Commission in office and not recused from participating in the matter…” The 2005 amendment cites as support a 1995 Securities and Exchange Commission (SEC) rule providing that, if the number of Commissioners in office is less than three, “a quorum shall consist of the numbers of members in office,” and that two members shall constitute a quorum for matters where Commissioners disqualified themselves from consideration or are otherwise disqualified from consideration.}