FTC Commissioner Backs Broad Presidential Power for Removing Officials

ASPEN -- The president should have broad discretion without interference from Congress to remove commissioners at independent agencies when they commit offenses the White House deems "fireable," FTC Commissioner Andrew Ferguson said Tuesday.

Ferguson was joined by fellow Republican FTC Commissioner Melissa Holyoak here at the Technology Policy Institute Aspen Forum, where he discussed the prospect of the U.S. Supreme Court overturning Humphrey's Executor v. U.S, the unanimous 1935 decision that found President Franklin Roosevelt’s removal of FTC Commissioner William Humphrey, a New Deal critic, unjustified. The FTC Act lets a president remove a commissioner only for "inefficiency, neglect of duty, or malfeasance in office."

Expanded presidential authority to replace government employees at all levels has become a Republican policy priority. The Heritage Foundation's Project 2025, prepared in part by many former and presumably future Trump administration officials and advisors, calls for a second Trump administration to "dismantle the administrative state and return self-governance to the American people," including by vastly expanding the president's authority to fire government employees. The document argues Congress wrote "intentionally vague laws" that allow unelected and "seemingly unfireable" bureaucrats to write rules that exceed their statutory authority.

Ferguson didn't cite the Heritage document or name Donald Trump. In addition, he said he doesn’t support a president “spending tremendous political capital on trying to defy Humphrey." However, he said it wouldn't be the "worst thing" for the White House to be able to exercise more discretion. “I operate under the assumption that the president will fire me if I do something he thinks is truly fireable," he said.

Ferguson noted defenders of Humphrey are concerned that a reversal could prompt the president to fire “dozens and dozens of people overnight," but such fears are “totally unrealistic [because that's] not how politics in the United States has generally worked." Still, Ferguson said, he supports the president asserting more control over bureaucracy. Should the president decide to "decapitate an agency by removing all its leadership, he or she will have to suffer the political consequences of that, and that’s the ultimate check."

Ferguson and Holyoak agreed there should be a “healthy bit of skepticism” when it comes to relying on independent agencies' interpretation of legislation, a view codified by SCOTUS' elimination of Chevron deference in its recent Loper Bright Enterprises v. Raimondo and Relentless v. Commerce (see 2406280043) decisions. The rulings are forcing the FTC to be “much more disciplined" when writing regulations, Holyoak said: It can no longer live in an “agency echo chamber" when interpreting statutes. Ferguson said FTC courtroom defeats already were checking the commission, confirming criticism of Chair Lina Khan’s ambitious enforcement approach. He said that when agencies pursue “very aggressive theories” and get “shellacked in court” they lose credibility. Holyoak warned against the FTC pursuing cases in which it’s “stretching the bounds” of its authority, saying it should focus “closely” on adhering to congressional intent as expressed in the language of statutes.