The commissioners of the Federal Trade Commission (FTC) sit just beyond the president’s removal power, for now. The U.S. Supreme Court has all but overruled Humphrey’s Executor, which declared the constitutionality of the FTC’s statutory protections from at-will presidential removal. Recent rulings in Seila Law, Free Enterprise Fund, and Collins held that restrictions on the president’s removal of various government agency officials are unconstitutional. Despite these cases, the Court has not directly overruled Humphrey’s Executor, and in theory, its precedent still provides the FTC commissioners with protection from the president’s removal power. However, the modern FTC is easily distinguishable from the 1935 FTC described in Humphrey’s Executor. Congress originally justified the FTC’s independence on the basis that the commission was to be uniquely expert and non-partisan. If the FTC wishes to retain the precedential effect of Humphrey’s Executor then the FTC must reclaim the congressional vision described in Humphrey’s Executor. The Commission’s appointees must exhibit FTC subject-matter expertise. Once appointed, the Commissioners must see their seven-year tenure through to the end despite shifts in government politics, and they must take care to ensure that their rhetoric and other actions do not ruin the perception of political impartiality that the founding Congress sought to create. By reclaiming these principles of expertise and impartiality, the FTC’s character will more closely resemble what Congress intended when it was established over a century ago and be more likely to survive future scrutiny from the judiciary.
© 2023 BYU J. Reuben Clark Law School
Reclaiming Humphrey’s Executor: Expertise and Impartiality in the FTC,
37 BYU J. Pub. L.
Available at: https://digitalcommons.law.byu.edu/jpl/vol37/iss2/9