FTC and Federal Reserve - Congressional power at risk: Presidential power ascendant?

Federal Trade Commission and Federal Reserve - Congressional power at risk: Presidential power ascendant?

Ninety years ago in Humphrey's Executor v. United States, 295 U.S. 602 (1935) the United States Supreme Court asked two questions about the tenure of the five members of the Federal Trade Commission, created by Congress in 1914, now codified, as amended at 15 U.S.C.  §§  41:

 "1. Do the provisions of section 1 of the Federal Trade Commission Act, stating that 'any commissioner may be removed by the President for inefficiency, neglect of duly, or malfeasance in office,' restrict or limit the power of the President to remove a commissioner except upon one or more of the causes named?"

"If the foregoing question is answered in the affirmative, then -- "
"2. If the power of the President to remove a commissioner is restricted or limited as shown by the foregoing interrogatory and the answer made thereto, is such a restriction or limitation valid under the Constitution of the United States?"

 The high court's answer in 1935 was Yes and Yes.  But, as Steve Vladeck [now at Georgetown Law] reports in a post on his blog One First No. 179   Stare Decisis Free Docket  the Supreme Court has annnounced it will answer those questions again. Vladeck explains:

[I]n Trump v. Slaughter [2025]  the Court cleared the way for President Trump to remove, without cause, the last Democratic member of the Federal Trade Commission. And it also granted certiorari “before judgment” (leapfrogging the court of appeals to take up the case on the merits), so it can decide, as soon as early next year, (1) whether to overrule its 1935 decision in Humphrey’s Executor (which upheld statutes requiring cause before the President may remove such officers); and (2) more generally, what remedies, if any, federal courts can provide if government officers are wrongly removed by the President. 

Humphrey's Executor is a nearly century old bedrock of the modern U.S. state and long a target of the political right who imagine a Jeffersonian freeholders' republic is still possible and desirable.  Not all conservatives are so hostile to the administrative state.  Adrian Vermeule and Cass Sunstein found common ground in their book Law and Leviathan, Redeeming the Administrative State.- the subject of a recent Yale Journal on Regulation symposium.

If Humphrey's Executor is overruled - as prefigured - the consequences will be substantial.  Under the FTC enabling act 15 U.S.C. 41, et seq the five Commissioners [only three of whom may be members of the same political party],  each serve a term of seven staggered years.  A Commissioner - who receives the same salary as a Judge of the United States - may be removed  only "for inefficiency, neglect of duty, or malfeasance in office".

If - as the Trump administration seeks, the statutory restraint on Presidential removal power is held unconstitutional - the Commissioners  become at will employees of the President, serving at his pleasure.  Will not their autonomy as custodians and interpreters of the law be gravely reduced?  The Supreme Court majority seems to be rushing to this result - having granted certiorari before judgment, thus depriving the Federal Circuit Court of Appeals of the opportunity to review and opine.

What then will be the value of a ruling by  such a board, like the  Federal Reserve or the FTC whose members' terms are subject to termination without good cause?  What is gained by the bi-partisanship mandate?

 

- GWC