Comments

In a statement issued on social media platform X, FTC Chairman Andrew Ferguson confirmed Bedoya's and Slaughter's terminations and stated that President Trump "is vested with all of the executive power in our government" and that he has "no doubts about [Trump's] constitutional authority to remove Commissioners, which is necessary to ensure democratic accountability for our government." 

The dismissal of Bedoya and Slaughter leaves FTC Chairman Andrew Ferguson and Republican Commissioner Melissa Holyoak as the only active Commissioners at the FTC. The Trump administration has nominated Republican Mark Meador to serve as the third, majority-party FTC Commissioner, but his appointment is pending confirmation by the Senate.

By statute, the FTC is composed of five commissioners, who are nominated by the President, and confirmed by the Senate for a seven-year term. Further, the FTC Act mandates that no more than three Commissioners can be members of the same political party, and provides that the President shall designate one Commissioner to act as Chair. 

Several Democratic leaders have criticized this move. In a statement Tuesday evening, Senator Amy Klobuchar (D-MN) said "This is outrageous. President Trump's dismissal of Commissioners Slaughter and Bedoya is not only illegal but also hurts consumers by undermining an independent agency that Congress established to protect consumers from fraud, scams, and monopoly power. The Federal Trade Commission has carried out this mission in a bipartisan way for more than 110 years—including returning more than $330 million to consumers last year and taking on hidden fees—but today President Trump has threatened that critical work. Illegally gutting the Commission will empower fraudsters and monopolists, and consumers will pay the price."

In depth

The dismissal of Bedoya and Slaughter raises numerous questions about the nature and extent of the President's ability to exert influence and control over independent federal agencies. We expect that the US Supreme Court will ultimately provide the answers. In the interim, there are a few key takeaways. 

• This is the latest effort by the Trump administration to exert more influence over federal agencies, following issuance of a number of executive orders directed to independent agencies and similar dismissals of agency heads at the Consumer Financial Protection Bureau (CFPB), National Labor Relations Board (NLRB), and the Office of Special Counsel.
• The dismissals set the stage for a legal battle regarding the reconsideration of the Supreme Court's 1935 ruling in Humphrey's Executor, which found unanimously that President Franklin D. Roosevelt could not fire without cause a sitting Commissioner of the Federal Trade Commission, William Humphrey. The Supreme Court, more recently, has narrowed the holding of Humphrey's Executor allowing the dismissal of the CFPB head (see 91 U.S. 197 (2020)) and distinguishing Humphrey's Executor on the basis that the agency is headed by a single Director. 
• The dismissal foreshadows a similar fight at the Securities and Exchange Commission and potentially other independent agencies. The SEC has one open minority party commissioner position and one holdover whose term has expired-Caroline Crenshaw. Crenshaw has not yet left the SEC as historically SEC Commissioners may serve up to 18 months beyond the expiration of their terms. The removal of the FTC Commissioners suggests that Trump may seek to remove Crenshaw and may not appoint any minority-party successors. This development also may portend additional removals at other five-member commissions such as the Federal Energy Regulatory Commission, Consumer Product Safety Commission, Federal Communications Commission, and others. 
• The removals have and will continue to spark controversy throughout the antitrust and legal communities, including many of the FTC's staff. It remains to be seen what impact, if any, the dismissals may have on ongoing investigations and enforcement actions. 
• Finally, it is unclear what Trump's plans are for the new Democratic vacancies on the Commission. Barring court intervention, it is possible the FTC will have at least two open commissioner positions for the foreseeable future. The FTC has previously operated under one-party direction or a limited number of commissioners for extended periods of time. But the legitimacy of actions taken by the Commission during the absence of two commissioners may be questioned or challenged if Bedoya's and Slaughter's legal challenges to their removals are successful. 

We will continue to monitor updates concerning the appointment and confirmation of FTC Commissioners.