Dana Mattioli and Dave Michael at WSJ:
President Trump fired the Federal Trade Commission’s two Democratic commissioners on Tuesday, the latest moves in his campaign to exert more control over independent government agencies.
The two commissioners, Rebecca Slaughter and Alvaro Bedoya, were informed of their dismissals on Tuesday.
The move runs counter to current Supreme Court precedent that says the FTC’s commissioners can only be removed for cause. The Trump administration has been clear that it is eager to see that precedent revisited.
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In an email viewed by The Wall Street Journal, a White House official said the president wields “unrestricted” power to remove executive-branch officers who were confirmed by the Senate. “Your continued service on the FTC is inconsistent with my administration’s priorities,” the letter states. “Accordingly, I am removing you from office pursuant to my authority under Article II of the Constitution.”Trent Morse, deputy director of presidential personnel, cited a Supreme Court decision from 1926, Myers v. United States, to justify the move. The Myers decision predated the high court’s 1935 ruling in another case, known as Humphrey’s Executor, which was squarely focused on the dismissal of an FTC commissioner during the Roosevelt administration.The Supreme Court in Humphrey’s Executor narrowed the president’s power to remove FTC commissioners, saying they cannot be removed on policy grounds. Morse’s email to Slaughter and Bedoya argues that FTC commissioners have different authorities—their power is more aligned with the executive branch’s duties—than the justices understood in 1935.
The next conservative Administration should embrace the Constitution and understand the obligation of the executive branch to use its independent resources and authorities to restrain the excesses of both the legislative and judicial branches. This will mean ensuring that the leadership of the Department of Justice and its components understand the separation of powers, that pushback among the branches is a positive feature and not a defect of our system, and that the federal system is strengthened, not weakened, by disagreement among the branches.
One example includes potentially seeking the overruling of Humphrey's Executor v. United States. This case approved so-called independent agencies whose directors are not removable by the President at will. The Supreme Court has chipped away at Humphrey's Executor in cases like Seila Law v. Consumer Financial Protection Bureau, but the precedent remains. The next conservative Administration should formally take the position that Humphrey's Executor violates the Constitution's separation of powers.
On February 12, the Justice Department officially took this position:
Pursuant to 28 U.S.C. 530D, I am writing to advise you that the Department of Justice has determined that certain for-cause removal provisions that apply to members of multi-member regulatory commissions are unconstitutional and that the Department will no longer defend their constitutionality.
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To the extent that Humphrey's Executor requires otherwise, the Department intends to urge the Supreme Court to overrule that decision, which prevents the President from adequately supervising principal officers in the Executive Branch who execute the laws on the President's behalf, and which has already been severely eroded by recent Supreme Court decisions.
The FTC firings are not the only example. From the Center for American Progress on March 5:
Today, a federal district court judge in Washington, D.C., held a hearing in a case that could ultimately decide the fate of Humphrey’s Executor v. United States, a 90-year-old U.S. Supreme Court case that is foundational to the functioning of independent agencies. As the Center for American Progress recently discussed, independent agencies are critically important to protecting Americans’ safety, health, and prosperity. In the case argued today—Wilcox v. Trump—Board Member Gwynne Wilcox of the National Labor Relations Board (NLRB) contends that President Donald Trump fired her without cause, in violation of the law. Wilcox is just one of several independent leaders summarily fired in recent weeks by Trump, who is ignoring well-settled law as he attempts to amass as much executive power as possible.
