President Donald Trump is off to a fast start in his second term in the White House. Along with a bevy of other consequential actions, the president has called into question the constitutionality of the Federal Trade Commission’s (FTC) independence. At first blush, the U.S. Supreme Court’s 1935 decision in Humphrey’s Executor v. United States would seem to prevent the president from removing FTC commissioners without cause. But that is incorrect.
On March 18, President Trump removed Commissioners Alvaro Bedoya and Rebecca Slaughter from the FTC, notwithstanding a statute that specifies only certain allowable justifications for their removal. The president appears to believe that Article II of the Constitution—which vests the executive power in the president alone and which obligates the president to take care that the laws be faithfully executed—supersedes that statutory limitation on his power to remove FTC commissioners.
Enter the 90-year-old Humphrey’s Executor decision. The Supreme Court held in Humphrey’s that the statutory-removal provisions for FTC commissioners were indeed constitutional. Thus, the argument goes, an on-the-books Supreme Court precedent prevents Trump from effectuating the removal without cause. Then, as now, a president is attempting to remove an FTC commissioner (or two). Same result?
No. In a forthcoming article in the Alabama Law Review, I lay out why Humphrey’s Executor is no bar to the president’s action today. Put simply, the FTC of 2025 has a meaningfully different set of powers than did the FTC of 1935. That is because Congress has augmented the agency’s authorities substantially in the years since the Supreme Court decided Humphrey’s Executor. And regardless whether it represents the best understanding of Article II of the Constitution, Humphrey’s relied principally on the nature of the FTC’s powers when reaching its conclusion. Because the FTC’s powers are not the same today as they were in 1935, the Court’s holding in Humphrey’s Executor does not apply to the modern FTC.
In Humphrey’s Executor, the Court focused its analysis on the FTC’s powers when it determined that Congress could insulate the agency’s commissioners from removal. Back in 1935, the FTC had just three main authorities: preparing reports for Congress, adjudicating whether a party had engaged in an unfair method of competition, and serving as a master in equity for a court. Reviewing these powers, the Court determined that the FTC’s “duties are neither political nor executive, but predominantly quasi-judicial and quasi-legislative.” Thus, the agency “could not in any proper sense be characterized as an arm or an eye of the executive.” As the Court put it: “Its duties are performed without executive leave and, in the contemplation of the statute, must be free from executive control.”
Things have changed. Over the next 90 years, Congress amended the FTC’s organic act several times. Now, in addition to the powers that it possessed in 1935, the FTC can bring its own original civil actions in federal court to recover financial penalties for violations of its orders and rules. These awesome powers far exceed what the FTC could do when the Court decided Humphrey’s Executor. And recent cases like Seila Law LLC v. CFPB indicate that the Court would understand these authorities to be quintessentially executive in nature. Even if the FTC “could not in any proper sense be characterized as an arm or an eye of the executive” in 1935, that is not true of the agency today.
The article walks through the origins of the FTC—the successor agency to the Bureau of Corporations, modeled after the Interstate Commerce Commission. It traces the agency’s development from its establishment in 1914 through the modern day. And it explains in greater detail why Humphrey’s Executor does not apply to the modern FTC, which is different than the original FTC.
The fired FTC commissioners are already litigating the legality of their respective removals. And if the case makes its way up to the Supreme Court, the Court may well use the case as a vehicle to overrule Humphrey’s Executor. But as the article contends, a lower court can (and should) rule in favor of President Trump in this litigation—Humphrey’s Executor notwithstanding.
