Did President Trump break the law by firing FTC commissioners?
On Tuesday, March 18, 2025, President Donald Trump summarily fired two Democratic members of the Federal Trade Commission. This would be an unremarkable occurrence at the start of a new presidential administration, except Congress restricted the president’s ability to fire commissioners to instances of “inefficiency, neglect of duty, or malfeasance in office.” This raises two questions: (1) Did President Trump break the law, and (2) Did President Trump interfere with the proper functioning of the FTC? The answer to both questions is “No.”
Since the first Congress in 1789, it has been broadly understood that the executive power vested in the president by Article II of the Constitution includes the power to remove executive officers. It is an essential capability in the president’s oversight of the executive branch. As Chief Justice William Howard Taft explained in Myers v. United States (1926), to reach a different conclusion “would make it impossible for the President . . . to take care that the laws be faithfully executed.”
Nevertheless, Congress has established agencies like the FTC that are intended to be independent of the president’s direct control. These “independent” executive agencies are supposed to be headed by subject-matter experts who eschew politics and focus exclusively on the public good. To protect these agencies’ independence, Congress imposed restrictions on the president’s ability to remove their leaders for reasons other than misbehavior. And this practice was blessed by the Supreme Court in 1935 in Humphrey’s Executor v. United States, a case involving the very situation we have today: the firing of an FTC commissioner.
But this practice masks a faulty premise and invades the president’s constitutional authority.
First, restrictions on the president’s removal power are the product of the constitutionally bizarre conceit that federal agencies can be independent, wielding significant power while occupying some interstitial space between the three branches. Experience has shown what hard-headed analysis predicted—that government employees, like everyone else, cannot simply leave partisanship and bias at the door. At the very least, government agencies are likely to pursue agendas to support the agencies’ continued existence but not necessarily aimed toward the public good. As a result, these “independent” agencies have pursued obviously partisan goals.
Second, the Supreme Court’s decision in Humphrey’s created all sorts of constitutional problems. For example, Humphrey’s concluded that the FTC is a “quasi judicial and quasi legislative” agency that undertakes investigations and reports (the legislative function) and acts as a court of equity for claims of “unfair methods of competition” (the judicial function). Because the president’s removal power is limited to executive officers, Congress can restrict removal for non-executive officers—even if it cannot be said what kind of officers they are.
But this is neither how the FTC nor the Constitution works. Since the FTC’s creation in 1914 and Humphrey’s in 1935, it has been given significant executive authority by Congress. The Commission can now issue regulations governing unfair or deceptive acts or practices (i.e., deceptive advertising and labeling), bring individual adjudications regarding potential unfair methods of competition, and impose penalties on those violating its regulations and orders. Just last year, it claimed authority it does not even have to ban virtually all non-compete agreements. These are all the actions of an executive branch agency with executive branch officers. And whether these actions seem to have a legislative or judicial character, they remain exercises of executive power.
Article II centralizes control of the executive power in the president. This ensures that he has the authority to execute the laws and contend with a powerful Congress. The check on the president’s central control is democratic accountability. As the Supreme Court recognized in Seila Law LLC v. CFPB (2020), “Only the President (along with Vice President) is elected by the entire Nation.” Insulating the FTC commissioners from removal by the president has the perverse effect of shielding them from this democratic source of accountability provided in the Constitution for such officers.
To whom are the FTC commissioners accountable for the consequential decisions they are empowered to make? No one, really. That was the point, and an enormous problem. The Supreme Court in Humphery’s concluded that it was Congress’s “intent to create a body of experts” that is “independent of executive authority… and free to exercise its judgment without the leave or hindrance of any other official or any department of the government.” And 90 years later, Politico described the FTC’s structure as “creat[ing] stability and predictability for the companies subject to its oversight.” Senator Maria Cantwell (D-WA) asserted that the “FTC should be an independent, bipartisan consumer watchdog that puts consumers ahead of politics.”
But politics is just another word for accountability. It is good that the executive officials making critical decisions that affect Americans’ lives have some accountability to the electorate. Without that political accountability, we are not living under the benevolent regulation of experts—we are living without a say in our own affairs.
And, as noted above, the FTC does not operate free from politics. Its non-compete rule was instigated by an executive order signed by President Joe Biden in which he “call[ed] on the FTC to ban or limit non-compete agreements.” The “independent” Federal Communications Commission similarly acceded to President Barack Obama’s jaw-boning when it adopted the “net neutrality” rule. Sure, the FTC or FCC could nominally have ignored the president’s call. But that was not a realistic expectation.
These agencies’ supposed independence is also not producing regulations that are legally sound. The FTC issued its ban on non-compete agreements in April 2024 only to have a federal judge in Texas vacate it because the FTC had no authority to issue such a rule. The FTC’s appeal is now on hold for roughly four months at the FTC’s request. And the Sixth Circuit appears to have finally ended the FCC’s attempt to rewrite the nation’s communications laws.
By firing the two remaining Democratic commissioners, President Trump eliminated both the FTC’s statutory independence and a public pretense of independence. This executive branch entity is now fully and openly under the control of the one person empowered by the Constitution and the voters to exercise that authority. And Congress—which is also accountable to the voters—can consider and enact the consumer protection and competition rules that it believes are appropriate for the president to enforce through the FTC.
This is not an instance of the Trump administration playing fast and loose with the law to achieve its goals. President Trump is right to assert his executive power over the FTC. And it moves us closer to a better-functioning federal government.
