President Trump cited no reason when he fired Democratic FTC Commissioners Rebecca Slaughter and Alvaro Bedoya in March, but he presumably wanted an FTC that is unanimously Republican and loyal to him. Were these “at will” firings lawful? Slaughter and Bedoya think not and have challenged their dismissals in federal district court. In a recent Two Think Minimum podcast, I joined my TPI colleagues and former FTC Chairman Bill Kovacic to discuss these firings, the ensuing litigation, and what these developments mean for U.S. antitrust enforcement.
Towards the end of our podcast, we briefly discussed the institutional consequences of converting the FTC into an extension of the president, as these firings effectively do. As I suggested, at-will dismissal defeats the congressional purpose for creating the FTC in the first place, and it makes that agency’s antitrust functions wholly redundant with those of DOJ’s Antitrust Division. We already have one Executive Branch antitrust enforcer beholden to the president’s whims; we do not need another. This blog post elaborates on that point and what it means for the future of the FTC.
Some History
Congress passed the FTC Act in 1914 because it was dissatisfied with the courts’ anemic early implementation of the Sherman Act of 1890. Congress thus created a federal competition agency consisting of five commissioners and “called upon [them] to exercise the trained judgment of a body of experts.” To that end, it gave the commissioners broad discretion to adjudicate and enjoin whatever they deemed “unfair methods of competition,” a phrase that (at least in theory) encompasses some conduct that would not independently violate the Sherman and Clayton Acts.
Congress’s extraordinarily open-ended grant of power to the new agency posed obvious concerns about partisan abuse. To allay those concerns, Congress imposed several structural safeguards in Section 1 of the FTC Act. Subject to Senate approval, presidents could appoint commissioners to staggered seven-year terms, but “no more than three of the Commissioners shall be members of the same political party.” And—of critical importance here—Congress prohibited the president from removing sitting commissioners except for “inefficiency, neglect of duty, or malfeasance in office.”
President Franklin Roosevelt put this tenure protection to the test in 1933 when he dismissed Commissioner William Humphrey, a Republican appointee of Presidents Coolidge and Hoover. Like Trump, Roosevelt cited no cause for the dismissal, simply noting that “the aims and purposes of the Administration with respect to the work of the Commission can be carried out most effectively with personnel of my own selection.” Humphrey and (after his death in 1934) his executor challenged this dismissal as a violation of the FTC Act. The Roosevelt administration responded that the statutory tenure protection violated the constitutional separation of powers—that it impermissibly constrained the president’s inherent authority to staff the Executive Branch however he saw fit.
The Supreme Court unanimously ruled against Roosevelt and for Humphrey’s executor in the 1935 decision that bears the latter’s title. The Court held that Congress may constitutionally create a quasi-legislative, quasi-adjudicatory agency outside the absolute control of the Executive Branch, and that the FTC was such an agency. The Court further explained that tenure protection was central to Congress’s purpose in creating the FTC and entrusting it to sit in judgment of private companies and individuals. It remarked: “The commission is to be non-partisan; and it must, from the very nature of its duties, act with entire impartiality. … [It] shall be independent of executive authority, except in its selection, and free to exercise its judgment without the leave or hindrance of any other official or any department of the government.”
Recent Supreme Court decisions, however, have drawn Humphrey’s Executor into question. The Republican majority on the Court embraces an increasingly muscular version of the “unitary executive” doctrine, which holds that the Constitution permits only three branches of government, that Congress may not create any “independent” agency outside those branches, and that the president must have complete control over any agency that exercises significant executive authority. President Trump believes that at least five justices would vote to overrule Humphrey’s Executor, and he might be right. I would like to focus here, however, not on the merits of that issue but on the existential consequences a victory for President Trump would pose for the FTC as an institution.
FTC and DOJ Redundancies
When I served as FTC general counsel ten years ago, the agency already faced questions of redundancy with DOJ’s Antitrust Division. Those questions arose in part from the FTC’s institutional metamorphosis since 1914. Originally, the Commission sat exclusively as an administrative adjudicator in antitrust cases; it held trials and issued decisions reflecting its notionally expert views on the line separating “fair” from “unfair” methods of competition. Since the 1970s, however, the Commission has become more of a law enforcement agency like DOJ: it now files most (though not all) of its cases in federal district courts. And like DOJ, the FTC asks those courts to decide its antitrust cases under Sherman and Clayton Act standards, which now supply the doctrinal content for nearly all “unfair methods of competition” claims.
All that said, we at the FTC could cite reasonable justifications for championing the agency as an independent antitrust institution. We noted that the Commission did still sit as an expert adjudicative body in some cases involving important policy-laden competition questions. Those decisions, we argued, could usefully supplement the mainstream antitrust precedent of generalist courts. For example, the FTC’s Evanston Northwestern Healthcaredecision in 2007, which drew on groundbreaking empirical analysis by Commission staff, has been credited with reshaping how federal courts analyze hospital mergers. And, unlike DOJ, the FTC is by statutory design a bipartisan agency and thus (we argued) has taken a more measured and consistent approach to antitrust doctrine from one administration to the next.
Reasonable people disagreed with our arguments then, and Biden FTC Chair Lina Khan’s norm-shattering approach to Commission leadership did nothing to make those arguments more persuasive. But President Trump’s firing of Commissioners Slaughter and Bedoya—if upheld in court—would be the coup de grâce: it would drive a stake into prior rationales for maintaining the FTC as an independent antitrust authority.
First, and most obviously, these firings destroy the bipartisanship justification. Like DOJ, the FTC is now run entirely by Republicans who, under unitary executive doctrine, serve only as agents of the presidential will.
Second, the firings all but preclude FTC commissioners from sitting as adjudicators (rather than prosecutors) and exercising their notional “expertise” in competition policy. As Bill Kovacic observed during our podcast, “I’m not sure how you run an adjudication process … where the Executive can say, ‘Hey, I don’t like that decision. You’re out.’” In fact, if the president may treat commissioners as his agents and dictate case outcomes to them—as unitary executive theory holds he may do—the FTC’s adjudicative function becomes a walking due process violation. There can no longer be even a pretense of the “impartiality” that the Humphrey’s Executor Court deemed essential to those functions. That would be a problem in any administration, but it is particularly problematic in this one, given President Trump’s reputation for intervening in antitrust matters for partisan reasons. In short, if unitary executive theory prevails in this context, the FTC must bring all of its cases in federal courts because they alone can honor the due process rights of the FTC’s targets.
Third, the demise of the FTC’s adjudicative functions would also keep the agency from giving independent substantive content to Section 5 and would thus destroy another foundational rationale for the agency’s existence. As noted, Congress directed the FTC to exercise its expertise to identify “unfair methods of competition” that elude condemnation under the Sherman and Clayton Acts, which are administered by the federal courts. In recent years, the FTC has very rarely used this “standalone Section 5” authority, and “the overwhelming majority of FTC competition cases rely on the same standards as those used by the DOJ,” as the FTC’s Bureau of Competition director explained in 2015.
This “overwhelming majority” would soon become a complete totality if the FTC must now bring all of its cases in federal court. For more than a century, the federal judiciary has developed a comprehensive body of antitrust precedent that, in its view, properly accounts for all the considerations relevant to sound competition policy. If the FTC perceives gaps in that regime, it should sit in its “expert” adjudicative capacity to flesh out its independent vision of Section 5; it can hardly outsource that task to the federal courts. But by precluding the FTC from acting as a court its own right, unitary executive theory spells the de facto end of the FTC’s standalone Section 5 authority.
No Remaining Rationale for the FTC’s Antitrust Functions?
In short, at-will presidential removal authority defeats each of Congress’s rationales for creating the FTC. It eliminates the agency’s bipartisan structure, its integrity as an impartial adjudicator, and its ability to define and enjoin “unfair methods of competition” as a panel of experts. Would Congress have bothered to create a new antitrust agency to supplement DOJ had it known that it could not insulate the new agency from day-to-day presidential control and could not give it adjudicative powers consistent with due process—in short, could not make it meaningfully different from DOJ itself? The answer is almost certainly no. That inescapable inference about congressional intent has two consequences.
First, suppose the courts adopt President Trump’s argument that the FTC Act’s tenure protections are unconstitutional. What happens next? The conventional wisdom is that the courts will “sever” those protections from the rest of the FTC Act and allow the FTC to carry on business as usual, albeit without those protections. That was what the Supreme Court did when, in its 2021 Seila Law decision, it invalidated the tenure protection enjoyed by the Director of the single-member Consumer Financial Protection Bureau. It reasoned that “there is nothing in the text or history of the Dodd-Frank Act [of 2010] that demonstrates Congress would have preferred no CFPB to a CFPB supervised by the President.”
Here, an analogous inquiry into congressional intent cuts in the opposite direction—and thus weighs against severing the FTC Act’s tenure protection while otherwise preserving the FTC’s antitrust authority. Again, a federal antitrust enforcer was already on the beat in 1914, and Congress decided to supplement DOJ with a second antitrust agency, the FTC, because it would be bipartisan, insulated from undue presidential influence, and capable of adjudicating a new category of “unfair methods of competition.” Take those features away and you end up with an agency that, in its antitrust functions, looks very much like DOJ. Seila Law suggests that the severability analysis turns on speculation about what Congress would have done had it known that portions of a statutory scheme were unconstitutional and could not be enacted. If so, the right remedy here (if President Trump wins the case) might simply be to eliminate the FTC’s antitrust functions to avoid a pointless institutional redundancy that Congress could not have intended. This issue is lurking in the background of the current litigation, where Commissioners Slaughter and Bedoya have aptly noted the “complex remedial questions [that] would arise” if a court were “to identify a constitutional flaw in the FTC’s structure.”
Second, irrespective of litigation remedies, the political branches might well eliminate this institutional redundancy on their own as part of ongoing bureaucratic-reduction initiatives. Just last week, House Republicans proposed a budget amendment that would have eliminated the FTC’s Bureau of Competition and transferred its functions to DOJ. Although the FTC dodged that bullet amid legislative maneuvering, similar proposals will inevitably arise in the future. And objections to such legislation will have little force if the courts cooperate with the President in depriving the FTC of the features that distinguish its antitrust operations from DOJ’s.
To be sure, even under these scenarios, the FTC would likely continue to exist in some form because it is not only an antitrust agency. In 1938, Congress supplemented the agency’s antitrust authority with consumer protection functions that do not merely replicate the work of sister agencies. But stripped of its foundational antitrust mission, the FTC would become a shell of its former self—a sad fate for a storied agency that served Americans well for most of its 110-year history. As a proud alum, I will be rooting for Commissioners Slaughter and Bedoya, but with tempered expectations for a happy outcome.
Jon Nuechterlein is a Washington, DC-based attorney and writer with broad experience in government and the private sector. He is a Distinguished Scholar at George Washington University’s Competition Law Center, an adjunct professor at Georgetown Law School, where he teaches seminars in antitrust and telecommunications law, and a Nonresident Senior Fellow at the Technology Policy Institute. In December 2024, he retired from Sidley Austin LLP after nearly nine years as a partner and co-leader of the firm’s Telecom and Internet Competition practice. From 2013 to 2016, Jon served as General Counsel of the Federal Trade Commission, where he oversaw the Commission’s appellate litigation activities and provided legal counsel on a range of antitrust and consumer protection issues. Jon’s extensive government experience also includes positions as Deputy General Counsel of the FCC (2000-2001), as Assistant to the Solicitor General (1996-2000), and as law clerk to D.C. Circuit Judge Stephen Williams (1990-91) and Supreme Court Justice David Souter (1991-92). He is a graduate of Yale Law School (1990) and Yale College (1986). Jon is the author, with Phil Weiser, of the first two editions of Digital Crossroads: Telecommunications Law and Policy in the Internet Age (MIT Press 1st ed. 2005 & 2d ed. 2013). He and Georgetown Law Professor Howard Shelanski are finishing work on the third edition of that book, which is scheduled for publication in early 2026.
