DOJ Seeks Supreme Court Reversal for FTC Firing Protections
DOJ will ask the U.S. Supreme Court to reverse “unconstitutional” protections preventing the president from firing members of commissions like the FTC, acting Solicitor General Sarah Harris wrote Congress on Wednesday.
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DOJ will argue for the reversal of Humphrey's Executor v. U.S., a unanimous 1935 SCOTUS decision that found President Franklin Roosevelt’s removal of FTC Commissioner William Humphrey, a New Deal critic, unjustified.
FTC Chairman Andrew Ferguson argued in favor of a reversal in August when he was a commissioner (see 2408200045), saying the president should have broad discretion without interference from Congress to remove commissioners when they commit offenses the White House deems "fireable.” He said the president would need to weigh such decisions against political consequences.
Harris, in a letter to Senate Judiciary Committee ranking member Dick Durbin, D-Ill., said DOJ 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.” She specifically listed protections for members of the FTC, the National Labor Relations Board and the Consumer Product Safety Commission. “Those commissions exercise substantial executive power,” she said. “An independent agency of that kind has ‘no basis in history and no place in our constitutional structure.’”
The Trump administration has faced lawsuits for the recent firings of inspectors general and members of government bodies like the Privacy and Civil Liberties Oversight Board (see 2502110062).