Reed: Trump’s Illegal Firing of FTC Commissioners ‘Abuse of Power’

WASHINGTON, DC – President Donald Trump has fired the two Democratic commissioners on the five-member U.S. Federal Trade Commission (FTC), an independent agency charged with enforcing consumer protection and antitrust laws.

The unlawful move Tuesday directly contradicts nearly a century of case law allowing the FTC to act solely in the public interest and free from short-term political considerations.

After the firings were reported by NBC news, U.S. Senator Jack Reed (D-RI), Ranking Member of the Senate Appropriations Financial Services and General Government (FSGG) Subcommittee, which oversees funding for the FTC, issued the following statement:

“This is an abuse of power and a blatant attempt to undermine the law and public good in order for Donald Trump to consolidate power for himself and his favored cronies.  It would completely undercut the independence that Congress lawfully bestowed upon the FTC and subject Americans to higher prices, more frequent scams, and will breed unchecked anticompetitive consolidation.  President Trump is flouting the rule of law in favor of the wealthiest Americans, causing economic instability, and putting the welfare of Americans at risk.  If President Trump gets away with this move, there is nothing to stop him from paralyzing the FTC or weaponizing it, depending on who’s in power or what company is at issue.  Removal of these FTC commissioners—solely because they are Democrats and not because they have done anything wrong—follows a pattern of this White House brazenly grabbing political power for itself.  President Trump has also removed Democratic members of other multi-member boards and commissions dedicated to protecting labor rights, enforcing government ethics rules, and preventing violations of civil liberties. President Trump is trying to drag the country down a dead end that endangers citizens and consumers, prevents accountability, emboldens corruption and autocracy, and could bleed taxpayers dry.  He is betting on a complaisant Supreme Court to validate this blatant executive overreach.  I hope the Court has some backbone, asserts itself as a co-equal branch of government, and affirms the 90 years of established legal precedent prohibiting Trump’s actions today.”

Reed noted Trump’s partisan dismissals of FTC commissioner are the latest instance of Trump wrongfully terminating critical federal employees without cause and trying to consolidate power for himself by turning independent federal watchdogs into lapdogs in the Trump coup.  The terminated commissioners indicate they plan to sue to reverse the firings.  Senator Reed urged the federal courts and U.S. Supreme Court to expedite review of multiple cases moving through the system and to uphold the law.

Alexandra Reeve GivensAlexandra Reeve Givens,President & CEO at Center for Democracy & Technology, expressed similar dismay at the firings and the consequences to Americans as a result. 

“The President continues his rampage against consumer protection agencies with these destructive, unprecedented, and baseless firings. It’s now perfectly clear that President Trump will fire anyone who might stand in his way, regardless of the legal protections designed to preserve agencies’ independence.

“The FTC is an independent agency for a reason: its independence allows it to enforce the laws and protect American consumers without favor. These political firings fly in the face of the Commission’s bipartisan history and nearly 100 years of Supreme Court precedent. And it’s consumers who will pay the price,” Reeve Givens said.

FTC History as Independent Safeguard for Americans

The FTC is an independent agency created by Congress and led by a bipartisan panel of five commissioners – three selected from the president’s party and two from the minority party, and staffed nearly exclusively by nonpartisan experts, lawyers, and non-partisan civil servants who help safeguard the public interest, according to Reed’s office.  FTC employees do the highly complex and technical work that lawmakers do not have the expertise to perform themselves like devising rules, investigating complaints, and penalizing lawbreakers.

To insulate FTC commissioners from day-to-day political influence, by law they can be removed only for good cause like neglecting their official duties.  But Trump hasn’t provided any reason or cause whatsoever for removing these commissioners.

FTC commissioners are unlike appointees who run executive departments directly under the president’s control, such as the U.S. Department of the Treasury, which has a single presidential cabinet official leading the department who is confirmed by the Senate and has wide latitude to work directly with the president to determine the direction of the agency.  Notably, FTC commissioners are appointed by the president and confirmed by Congress for lengthy terms at staggered intervals in order to serve across multiple administrations.  That continuity of service provides stability that benefits taxpayers and industry alike.

The Center for American Progress notes: “Independent agencies exist today, in large part, thanks to the Supreme Court’s foundational opinion in Humphrey’s Executor v. United States in 1935. In that case, President Franklin Roosevelt tried to fire FTC Commissioner William Humphrey because Roosevelt worried that Humphrey would block his policies. The FTC Act, however, only allowed commissioners to be fired for inefficiency, neglect of duty, or wrongdoing while in office (i.e., “for cause”). Congress felt that FTC commissioners needed to be insulated from politics in order to serve the American people. If commissioners were replaced after every presidential election, that would lead to a constant policy back and forth that would ultimately harm American consumers and undermine the agency’s mission.

 “The Supreme Court unanimously ruled that the president does not have unlimited power to fire independent agency heads. According to the court, Congress’ power to insulate independent agency heads from removal “cannot be doubted.” When agency heads perform “quasi-legislative” or “quasi-judicial” functions (i.e., policymaking or adjudicating), they are not exercising pure executive power, and thus the president does not have or need the ability to remove them at will. This case solidified independent agencies’ ability to serve the American people without fear of political reprisal.

 “In 1958, the Supreme Court reinforced Humphrey’s Executor in Wiener v. United States. In another unanimous opinion, the court held that the president does not have unlimited removal powers: “no such power is given the President directly by the Constitution, and none is impliedly conferred upon him by statute.” The court again evaluated removal protections in Morrison v. Olson in 1988. In Morrison, the court approved the extension of removal protections from independent agency heads to lower executive branch officers without policymaking abilities. In a 7-1 opinion, the court held that the for-cause restriction did not violate the separation of powers because it did not “unduly trammel on executive authority.”

 “Then, in 2020, the conservative-dominated Supreme Court indicated that there may be a small exception to Humphrey’s Executor. In Seila Law v. CFPB, the court narrowed Humphrey’s Executor by finding unconstitutional the for-cause removal protections for the Director of the Consumer Financial Protection Bureau, who manages the agency alone without fellow commissioners. In a 5-4 decision, the court held that removal protections for agency heads can only apply in two situations: 1) agencies with multimember commissioners and 2) agencies that do not wield substantial executive power. Seila Law adopted a more expansive vision of presidential power than Humphrey’s Executor and marked a troubling shift in the law for the millions of Americans who rely on independent agencies.”

Author: Warwick Post Staff