The Terminations of Two FTC Commissioners Raise Significant Legal Issues, but Immediate Implications Will be Limited
On March 18, 2025, President Trump fired the two Democratic commissioners on the Federal Trade Commission. The terminations — of Alvaro Bedoya and Rebecca Kelly Slaughter — leave the FTC with just two commissioners and are likely to tee up legal challenges to the President’s authority to take such actions.
While these are not unimportant developments, we expect the terminations to have limited immediate impact with respect to the Commission’s day-to-day operations. First, although only two of the five seats on the Commission are now filled, the Commission will remain operational. In 2005, the FTC issued a rule stating that a quorum exists so long as a majority of the sitting members who are not recused from participating in a matter do in fact participate.[1] This means that if the two remaining commissioners agree to take an action (or even if one commissioner is recused and the other takes action), the Commission may legally act. If they do not agree, there is a deadlock and the Commission cannot act.
There is recent precedent to this effect. In 2017, three commissioners held office, one of whom was recused from a certain matter involving a complaint alleging deceptive advertising. By vote of 2-0, the Commission authorized the filing of the complaint in federal court.[2] Similarly in 2018, when only two commissioners were in office, the Commission voted 1-0-1 to modify a consent decree, with one commissioner abstaining by reason of recusal.[3] While the notion of a single person acting on behalf of the FTC may seem to defy the concept of a commission altogether, as noted, the Commission rules authorize such acts. It bears mention, however, that parties subject to decisions made on these terms could well challenge them down the line.
What is almost certain in the near future is litigation challenging Mr. Bedoya’s and Ms. Slaughter’s terminations. The President’s recent firings of other Democrats from independent commissions and boards have spurred lawsuits by the terminated officials. In all three of those actions, the D.C. District Court ruled against the President.[4] The administration has appealed all three rulings, and while one plaintiff has dropped his lawsuit, the other two cases remain pending. It seems likely that the two terminated FTC Commissioners, like the plaintiffs in these cases, will sue to regain their positions. These matters could well reach the Supreme Court.
At the center of these litigations is a rule established by the Supreme Court nearly one hundred years ago. In Humphrey’s Executor v. United States, 295 U.S. 602 (1935), the Court held that the President does not have unrestricted power to remove an FTC Commissioner. According to Commissioners Bedoya and Slaughter, no reason was provided for their termination, suggesting that it was not for neglect, malfeasance or inefficiency, which Humphrey’s Executor states are the only bases on which a President can fire an independent commissioner. The White House has made clear that it intends to challenge or limit this holding, a position with which current FTC Chair Andrew Ferguson has stated his agreement.
While, as noted, the Commission is positioned to continue business as usual despite comprising only two members, the larger impact of the firings is profound. Although the FTC is technically part of the executive branch, it has long been understood to operate as an independent agency. The prospect of a president being empowered to terminate federal commissioners at whim, if permitted, would severely undercut this independence, resulting in, among other things, an agency subject to vast policy and personnel shifts when administrations change.
In short, the impact of the recent firings of FTC commissioners should be neither overstated nor understated. For the time being, the Commission will continue to operate unimpeded. But the downstream implications of the terminations — particularly if upheld by appellate courts — could result in seismic changes to the operation of the FTC as we know it.
Footnotes
[1] 16 C.F.R. § 4.14 (“A majority of the members of the Commission in office and not recused from participating in a matter (by virtue of 18 U.S.C. 208 or otherwise) constitutes a quorum for the transaction of business in that matter.”).
[2] Press Release, FTC, New York State Charge the Marketers of Prevagen With Making Deceptive Memory, Cognitive Improvement Claims | Federal Trade Commission,” Federal Trade Commission (January 9, 2017).
[3] Press Release, FTC Adds Requirements to 2014 Order to Remedy CoreLogic Inc.’s Compliance Deficiencies | Federal Trade Commission,” Federal Trade Commission (March 15, 2018).
[4] Wilcox v. Trump, Civil Action No. 25-334 (BAH) (D.D.C. Mar. 6, 2025) (President’s removal of National Labor Relations Board (NLRB) member unlawful because National Labor Relations Act states NLRB members can only be removed for cause); Harris v. Bessent, Civil Action No. 25-412 (RC) (D.D.C. March 4, 2025) (firing of chair of Merit Systems Protection Board unlawful under 1978 Civil Service Reform Act, absent showing of “inefficiency, neglect of duty, or malfeasance in office”); Dellinger v. Bessent, Civil Action No. 25-0385 (ABJ) (D.D.C. March 1, 2025) (same with respect to firing of head of U.S. Office of Special Counsel).
