Democratic FTC Commissioners file lawsuit against Trump over attempted firings

Democratic commissioners on the Federal Trade Commission filed a lawsuit against President Donald Trump on Thursday, saying his administration’s attempts to fire them violate the FTC Act and Supreme Court precedent.

The lawsuit, filed in the District Court for the District of Columbia, asks the court to declare the president’s actions unlawful, affirm the statutory rights of Alvaro Bedoya and Rebecca Slaughter to serve out the remainder of their seven-year terms, and block the commission from conducting official business in the meantime.

The lawsuit names and subpoenas Trump, FTC Chair Andrew Ferguson, Commissioner Melissa Holyoak and FTC Executive Director David Robbins as defendants.  

“Plaintiffs will not and do not accept this unlawful action: Plaintiffs bring this action to vindicate their right to serve the remainder of their respective terms, to defend the integrity of the Commission, and to continue their work for the American people,” the complaint states.

The suit claims Slaughter and Bedoya have been cut off from their FTC email addresses, were asked to return their technology equipment, denied access to their offices, and had all of their staff placed on administrative leave. They are also currently listed on the FTC’s website as “former Commissioners.”

There is no precedent in the FTC’s 111-year history for a president of one party to remove commissioners of another party without cause or neglect. By statute, the five-member commission has a partisan split of 3-2, with the party in control of the White House getting the majority. A 1935 Supreme Court case, Humphrey’s Executor v. the United States, affirmed that the president cannot legally fire an FTC commissioner for policy differences, only for inefficiency, neglect of duty or malfeasance in office.

The complaint includes copies of a letter sent to Slaughter and Bedoya on March 18 by Trent Morse, White House deputy director of presidential personnel, informing them they had been “removed” from the FTC “effective immediately,” citing the president’s Article 2 Constitutional authorities.  

Morse wrote that the Trump administration believes Humphrey’s Executor vs. the United States was decided at a time when the agency did not exercise “substantial executive power.”

He claimed that is no longer the case today, as the FTC issues subpoenas, makes binding rules on businesses, imposes injunctions on private parties and issues final decisions in administrative adjudications. He also suggested the administration does not expect today’s Supreme Court to view the FTC’s powers as unsubstantial.

“The exception recognized in Humphrey’s Executor does not fit the principal officers who head the FTC today,” Morse wrote.

That view, Bedoya and Slaughter’s lawsuit claims, flies in the face of current law and Supreme Court precedent.

“In short, it is bedrock, binding precedent that a President cannot remove an FTC Commissioner without cause,” the complaint states. “And yet that is precisely what has happened here: President Trump has purported to terminate Plaintiffs as FTC Commissioners, not because they were inefficient, neglectful of their duties, or engaged in malfeasance, but simply because their ‘continued service on the FTC is’ supposedly ‘inconsistent with [his] Administration’s priorities.’”

However, other observers, have said they expect the Supreme Court to ultimately overturn Humphrey’s Executor and affirm the president’s right to dismiss executive branch personnel.

Berin Szóka, a technology lawyer and president of the think tank TechFreedom, wrote in Tech Policy Press that “the fired Democratic FTC Commissioners may win early battles in their lawsuits but, in all likelihood, will ultimately lose at the Supreme Court — unfortunately.”

In past cases, members of the current court have said that conclusions in Humphrey’s Executor that the FTC did not exercise executive power “has not withstood the test of time.”

The court has “made clear it will not apply Humphrey’s, if it remains good law at all, to today’s more powerful FTC,” Szoka wrote.

In addition to a legal case, Bedoya and Slaughter have made moral and policy arguments in favor of maintaining the FTC’s independence.

That independence, they argued, has allowed the FTC to carry out investigations and enforcement actions against tech companies without fear of upsetting the president’s political allies.

Allowing the president to fire commissioners at-will would dramatically undermine that freedom and give the White House the ability to steer investigations and enforcement activity against political enemies and away from allies.

Further, the federal government has a number of other independent or quasi-independent agencies — such as the Securities and Exchange Commission, the Federal Communications Commission and the Federal Reserve — that carry out essential functions and benefit from similar protections against being fired for policy or political differences.

The suit highlights a quote from Ferguson, made in a media appearance one day before the administration sent its letter to Bedoya and Slaughter, that appeared to validate the importance of minority representation on the FTC and other commissions.

“I mean, look, if you have an agency that is exceeding the law, abusing the companies that it purports to regulate, it’s helpful for markets, for courts, for litigants, for government transparency, to have people on the other party pointing this out and saying it in dissents,” Ferguson said. “You know, I wrote 400-plus pages of dissents during my time as a minority commissioner, I think that that adds value.”

A day later, when the White House sent its letter to Bedoya and Slaughter, Ferguson posted on X that he has “no doubts” about Trump’s “constitutional authority to remove Commissioners, which is necessary to ensure democratic accountability for our government.”