President Trump relived his days as host of “The Apprentice” when he told Democrat Federal Trade Commission (FTC) board members Alvaro Bedoya and Rebecca Slaughter “you’re fired.” President Trump’s firing of Bedoya and Slaughter leaves the FTC with only two commissioners—Chair Andrew Ferguson and Melissa Holyoak. Since it only takes two FTC board members to constitute a quorum, the firing will not stop the FTC from doing business.
Under federal law, no more than three of the maximum five FTC board members can be from the same political party. Traditionally, three FTC commissioners are from the President’s party and two are from the other party. It is unclear if President Trump intends to fill the Democrat seats on the FTC’s board. Some progressives have suggested that President Trump fired the Democrats as a favor to his business supporters. These progressives say the business community wanted the Democrats gone in order to purge the FTC of any remnants of the Lina Khan era. They point out that removing the Democrat commissioners makes it easier to reverse or abandon Lina Khan-era initiatives like banning noncompete clauses and thwarting major mergers like the one between grocery store chains Albertsons and Kroger—as well as prioritizing the effects of mergers and acquisitions on labor markets.
Some say an all-Republican FTC will abandon Lina Khan’s war on big tech. This ignores the fact that, when it comes to big tech, Chair Ferguson is a “Khanservative,” meaning someone who supports using Lina Khan’s approach to antitrust to achieve conservative goals. So the difference between Chair Ferguson and his predecessor when it comes to big tech is that Khan favored cracking down on big tech because she thinks companies like Amazon and META (parent company of Facebook and Instagram) use their market power to bully consumers and smaller companies. While Chair Ferguson thinks big tech companies use their market power to advance the left by silencing conservatives and other dissenters from the progressive or “woke” agenda. Ferguson’s desire to continue Khan’s anti-big tech crusade may explain why he kept Khan's 2023 revised merger guidelines. These guidelines make it easier for the federal government to challenge almost any merger, acquisition, or other action that will increase a business' market share.
If President Trump hadn’t fired them, Ferguson would have gotten some pushback from the Democrats on the Commission for his efforts to use antitrust to go after “woke” corporations. Former commissioner Bedoya voted against Ferguson’s investigation into whether corporations are colluding to advance “Diversity, Equity, and Inclusion.” Democrat commissioners would also likely oppose Chair Ferguson’s “Request for Information” regarding the role concentration plays in big tech censorship.
President Trump’s firing of the Democratic FTC board members conflicts with the Supreme Court ruling in Humphrey's Executor v. United States (295 US 602 1935). Humphrey’s Executor involved a suit for back pay from the estate of an FTC commissioner fired by President Franklin Roosevelt. Every member of the court agreed that the FTC commissioner was improperly removed. The court held that an FTC commissioner can only be removed for the statutorily established reasons of “inefficiency, neglect of duty, or malfeasance in office."
Humphrey’s Executor is one of the cases proponents of unitary executive theory (which asserts the President has complete and sole authority over all federal agencies) wish to see overturned. Proponents of the unitary executive theory are correct that agencies like the FTC that combine executive, legislative, and judicial authority and operate without accountability are incompatible with our constitutional system— which is built on a foundation of separation of powers and checks and balances.
On the other hand, allowing the President to fire commissioners for any reason at all runs the risk of politicizing the agency, turning it into an instrument of law-fare. The risk of the FTC being used for law-fare is already present in Chair Ferguson’s “war on wokeness” and the Biden Administration’s campaign to pressure social media users for spreading what the administration labeled “misinformation.” Perhaps the answer is for Congress to pass legislation making it easier to remove FTC commissioners (and officials of other “independent agencies”) as long as the President provides Congress a written explanation for the firing. This would enable Congress to hold both the agencies and the President accountable.
