• by Wendy Davis  @wendyndavis, April 24, 2025

The Department of Justice is urging a federal judge to refuse to reinstate two ousted Federal Trade Commissioners, arguing that the president has the power to fire agency members at will.

“The president cannot be compelled to retain the services of principal officers whom he no longer believes should be entrusted with the exercise of executive power,” the Justice Department argues in papers filed late Wednesday with U.S. District Court Judge Loren AliKhan in Washington, D.C.

The government attorneys add that FTC commissioners must “be removable at will to ensure they, like the rest of the executive branch, are accountable to the people who elect the president,”

The Justice Department's argument comes in a high-stakes battle over the FTC that began last month, when Trump expelled Alvaro Bedoya and Rebecca Kelly Slaughter from the commission, leaving it without any Democratic commissioners.

Bedoya and Slaughter sued over the move, arguing that a president can only fire an FTC commissioner for three reasons set out by Congress -- inefficiency, neglect of duty, or malfeasance in office.

They are seeking a judicial declaration that their firing was illegal, and an order reinstating them to the commission -- which Congress established as an independent five-member commission, with each member appointed for a term of seven years and removable only for cause.

Bedoya was confirmed by the Senate in 2022 and his term wasn't set to expire until September 25, 2026. Slaughter joined the FTC in 2018, and was confirmed for a second time in March 2024. Her term wasn't slated to expire until September 2029.

They point to a the Supreme Court's 1935 decision in a case known as Humphrey's Executor, which involved President Franklin Roosevelt's attempt to fire an FTC commissioner. The Supreme Court said in that matter that Franklin Roosevelt lacked authority to dismiss an FTC member except for the grounds set out by Congress.

The Justice Department counters that the FTC today wields greater power than it did 90 years ago, when the Supreme Court limited the president's power to fire a member of that agency.

“The FTC today exercises substantial executive power, such as the quintessential executive authority to seek injunctions and significant monetary penalties against private parties in federal court (an authority Congress conferred after 1935),” the government lawyers argue.

“The Commission’s powers have grown since the FTC’s inception,” the Justice Department adds. “For example, when the Supreme Court decided Humphrey’s Executor in 1935, the FTC did not possess its consumer-protection power at all; its enforcement authority was limited only to 'unfair methods of competition.'”

The Justice Department also says that even if a court says Trump lacked authority to remove the commissioners, their remedy would be back pay -- not reinstatement.

Reinstatement would be “unwarranted because the president cannot be compelled to retain the services of principal officers whom he no longer believes should be entrusted with the exercise of executive power, and because this court lacks the equitable power to issue an order reinstating a principal executive officer removed by the president,” the attorneys argue.

Democratic lawmakers and 21 attorneys general have sided with Slaughter and Bedoya.

A group of law professors also recently sided with Bedoya and Slaughter, arguing that a ruling against them would signal that Trump could also fire members of other independent agencies -- including the Federal Reserve Board.

AliKhan plans to hold a hearing in the case on May 20.