Antitrust

Last week, the Supreme Court held that the Federal Trade Commission’s statutory protection against at-will presidential removal of its commissioners violated the Constitution. The Court’s decision in Trump v. Slaughter formally overruled Humphrey’s Executor v. United States (1935), the 90-year-old precedent that had long shielded commissioners at the FTC — and other similarly situated agencies — from full presidential control.

Even before Slaughter, the White House exerted significant influence over the FTC’s enforcement agenda and rulemaking priorities. In the past, the removal protection may have enabled commissioners from the party out of power to have a voice in agency actions. Whether Slaughter proves consequential or merely a change in form will depend on the choices of future presidents and, if appointed, future minority commissioners.

The Roberts Court and the Unitary Executive

Trump v. Slaughter is the latest chapter in the Court’s engagement with the Unitary Executive Theory — the view that all officers operating within the Executive Branch must ultimately answer to the president. The Court’s animating concern was democratic accountability: if agencies are insulated from presidential control, they may become a “fourth branch” answerable to no one. The Court cited James Madison’s argument during the First Congress that “if any power whatsoever is in its nature Executive, it is the power of appointing, overseeing, and controlling those who execute the laws” — and that the “power of removal from office” must follow to preserve “the chain of dependence” running from the lowest officers to the president, and from the president to the community.

Humphrey’s Executor had held that Congress could insulate the FTC from presidential at-will removal because its duties were “neither political nor executive, but predominantly quasi-judicial and quasi-legislative.” The Court in Slaughter, however, found that subsequent cases, including Morrison v. Olson (1988), Free Enterprise Fund (2010), and Seila Law (2020), had already dismantled Humphrey’s theoretical foundations. Despite these eroded foundations, Humphrey’s remained good law and shielded FTC commissioners from the president’s at-will removal. With Slaughter, however, the Court took the final step: “[i]f anything more is left of Humphrey’s, we overrule it.”

Why Commissioner Slaughter Lost

The Court was emphatic: “this is not a close case.” The Court highlighted the FTC’s ability to file lawsuits on behalf of the United States in federal court as a quintessential executive power. Going further, the Court characterized the FTC’s rulemaking and in-house adjudications – which had previously been seen as quasi-legislative and quasi-judicial functions insulating the FTC from the president’s at-will removal power – as functions of the executive branch. These actions are, in the Court’s words, “the very essence of ‘execution’ of the law,” and demonstrate that the FTC “unquestionably exercises executive power and must therefore be controlled by the Chief Executive.”

The majority noted some limits at the edges. Not every congressionally chartered entity necessarily exercises executive power – meaning that not every such entity will be beholden to the president’s removal power. The opinion pointedly lists “the Boy Scouts of America, the Society of American Florists and Ornamental Horticulturalists, and Georgetown University” as examples of bodies that plainly do not exercise executive power despite their congressional charters. The Court also left open the possibility that some functions with deep historical roots outside the Executive Branch, such as the Federal Reserve’s monetary policy role, may not be fully governed by today’s holding. For the FTC, however, there is no such ambiguity.

Justice Gorsuch: Don’t Stop Here

Justice Gorsuch wrote separately to emphasize what the majority left unresolved. He warned the Court that Congress has delegated vast legislative and judicial powers to previously “independent” agencies.  With the Slaughter decision, the president effectively controls all of it: “[t]he fourth branch’s powers still exist; they have just been reassigned to the President.” Without a determination from the Court that Congress cannot delegate these powers, Gorsuch worried the result would be “the accumulation of all powers . . . in the same hands” — and he called on the Court to use the nondelegation doctrine, the major questions doctrine, and Article III to claw those powers back when necessary. The Court declined to reach any of those questions.  Because the FTC sits squarely within the “heartland of executive power,” the president’s removal power unquestionably applies to the FTC. The Court left Slaughter’s outer limits to be defined on another day.

Dissent: Same Methodology, Different Interpretation

Justice Sotomayor’s dissent shared the Court’s focus on a founding-era understanding of executive power and the president’s removal authority, but read that history very differently.  “[T]here is no evidence that those who shaped or ratified the Constitution adopted the . . . general rule of at-will removal.” Where the majority saw an unbroken structural commitment to the president’s removal power running from the founding through Myers, Justice Sotomayor saw a far more contested historical record. In her view, the historical record did not compel overturning Humphrey’s Executor or the for-cause removal protections Congress has built into agencies like the FTC.

What Comes Next for the FTC

Slaughter means the FTC is no longer “independent” to the extent that its commissioners serve at the president’s total discretion.  The current FTC Chairman, Andrew Ferguson, has already eschewed any semblance of independence from the White House — notably labeling the agency the “Trump-Vance FTC” — but the Court’s decision turns Chairman Ferguson’s policy preference into law. Nevertheless, much of the FTC’s practice and structure remains unchanged.

Importantly, the commission structure itself survived the Slaughter decision: there are still five commissioner slots, with no more than three from the same party. Whether the president’s removal power changes the FTC’s nature and practice will likely turn more on the norms of future White Houses than on the law. The decision also did not touch the FTC’s substantive statutory authorities. The agency retains its rulemaking power, its authority to bring enforcement actions, and its ability to file civil suits under the statutes it administers.

In practice, the FTC’s independence was already more qualified than its statutory form suggested. Prior to Slaughter, the president already enjoyed statutory control over the FTC chairmanship, and the FTC Chairman controls many aspects of the agency’s daily functions and appoints the leadership of the agency’s bureaus and offices (including the Bureau of Competition, Bureau of Consumer Protection, the Bureau of Economics, the Office of General Counsel, among others). Even before Slaughter, the FTC’s enforcement agenda shifted noticeably across administrations — the agency’s approach to merger review and consumer protection rulemaking has varied with the party controlling the White House, and thus the FTC chairmanship.

The FTC’s “quasi-judicial” and “quasi-legislative” character has long been part of the argument for maintaining two separate federal antitrust enforcers. The FTC’s administrative adjudication process, its ability to develop competition policy through rulemaking, its consumer protection mandate, and its practice of issuing consent orders through its own proceedings arguably gave it a distinct role that complemented rather than duplicated the Antitrust Division’s role at the Department of Justice.

If the FTC is now simply another executive agency lacking independence from the president — as the DOJ has been — some may question the institutional rationale for the dual antitrust enforcement system. To be sure, Congress may determine that the FTC’s institutional structure, dual mandate, and focus are worth preserving.