Four months after President Donald Trump defied Supreme Court precedent to remove two Democratic commissioners from the Federal Trade Commission without cause, one of those commissioners is returning to work.
US District Court Judge Loren AliKhan called the attempted firing unlawful, finding that Rebecca Kelly Slaughter “remains a rightful member of the Federal Trade Commission” and that the president can only remove her for “inefficiency, neglect of duty, or malfeasance in office.” AliKhan ordered Republican FTC Chair Andrew Ferguson to provide Slaughter with “access to any government facilities, resources, and equipment necessary for her to perform her lawful duties as an FTC Commissioner during the remainder of her term,” which ends in September 2029.
The other Democratic commissioner, Alvaro Bedoya, formally resigned in June to seek another form of income without breaching federal ethics rules. For that reason, the judge dismissed the claims he brought in the lawsuit without prejudice, which is why only Slaughter is returning to work.
The Trump administration pledged to appeal the ruling, with White House deputy press secretary Kush Desai writing in a statement, “The Supreme Court has repeatedly upheld the President’s constitutional authority to fire and remove executive officers who exercise his authority.”
As she returns to the FTC today, Slaughter is still likely to be out-voted on many issues with a 3-1 Republican majority. But she can still use her post to bring transparency and an alternative perspective to the agency’s actions that might not have been available otherwise. Slaughter will have access to key information about investigations that the agency is conducting on antitrust and consumer protection issues, which often includes probes of how companies are handling consumer data or marketing services to the public. When the commission holds a vote on whether or not to bring an enforcement action against a company, Slaughter can shed light on key points of disagreement or an alternative path the agency might have taken based on the facts, even when she doesn’t get her way.
“The American public will not know what’s going wrong without minority commissioners on there”
Shortly after his attempted firing in March, Bedoya told a group of reporters on Capitol Hill that his and Slaughter’s absence from the commission could mean that some actions the agency chose not to take could be lost to history. “If there’s an action brought up to the commission, and the commissioners say no, that never becomes public,” he said. “So not only is there a pall over the mission-driven consumer protection, anti-monopoly work of this extraordinary agency, there’s also complete opacity about some of the stuff that may be about to happen. The American public will not know what’s going wrong without minority commissioners on there.” He predicted that once they were reinstated, they’d be entitled to learn about anything that had gone on in their absence besides deliberations around their own lawsuit.
Posting a selfie in front of the FTC building today, Slaughter wrote that she was “excited to be heading into the office this am!” and that her top priority is “calling a vote on restoring the Click to Cancel Rule.” The rule was recently blocked from taking effect by an appeals court due to procedural errors in its rollout under former Chair Lina Khan. The push to restore the rule is an example of something that might not happen without a minority commissioner at the agency, since Ferguson and Republican Commissioner Melissa Holyoak had voted against the rule in the first place when they themselves were in the minority, taking issue with what they saw as a rushed process.
In the time that the FTC has been devoid of minority commissioners, Ferguson has taken steps to reduce the FTC’s independence from the executive branch. The agency’s consumer protection director told staff to stop calling the FTC “independent” in legal complaints. Ferguson has backed the White House’s assertion that Trump had the authority to fire his fellow commissioners. His muted response in the face of an executive order saying the White House could “review independent regulatory agencies’ obligations for consistency with the President’s policies and priorities” has been meaningful.
Slaughter has warned that Trump’s attempt to fire her and Bedoya are an early sign of how he might treat other independent agencies that are supposed to be insulated from political turmoil. (The Federal Communications Commission’s remaining Democrat, Anna Gomez, recently told The Verge she’s not sure why Trump hasn’t attempted to fire her yet as she’s toured the country criticizing the administration, and expressed a lack of confidence that he’d nominate another Democrat to the agency.)
“The for-cause removal protections that apply to my colleagues and me at the FTC also protect other independent economic regulators like the SEC, the FDIC, and the Federal Reserve,” Slaughter said in a statement after the court ruling vindicating her. “All these agencies were designed by Congress so that the economy wouldn’t experience whiplash every time the political winds change.”
Although Slaughter is celebrating her return to her job, the fight is unlikely to be over. Republicans — including Trump administration officials — have advocated for a reevaluation the Supreme Court precedent known as Humphrey’s Executor that prevented Trump from firing Slaughter and Bedoya in the first place. They question the authority of independent agencies and believe that the president should have more control over their remits. Recent Supreme Court rulings suggest the justices might just be willing to give Trump that kind of power.
