- President Trump has fired two Democratic FTC commissioners, leaving only two Republicans on the panel. The Senate has yet to confirm Trump’s pick for the third Republican seat, Mark Meador.
- FTC rules state that the controlling political party can fill no more than three seats in the five-person panel.
- Trump may choose not to fill the two vacant seats. At the same time, the fired commissioners are challenging their dismissal.
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President Donald Trump’s move to fire the two Democratic members of the Federal Trade Commission (FTC) will face some legal tests. But is it possible for the regulator to function with just two remaining members on the panel?
When the FTC was created, the law stated no more than three commissioners can be from a single party. Typically, three commissioners are from the president’s party, while the two remaining commissioners are from the opposing party.
The commission now consists of just two Republicans: FTC Chairman Andrew Ferguson and Commissioner Melissa Holyoak. A third Republican, Mark Meador, is still awaiting confirmation from the Senate.
Can the FTC do its job short-staffed?
“A vacancy in the Commission shall not impair the right of the remaining Commissioners to exercise all the powers of the Commission,” the Federal Trade Commission Act reads.
Former FTC Chair and Commissioner William Kovacic pointed out that it’s not the first time only two commissioners have filled the role.
“The FTC view, which was solidified about 10 years ago, is that two can be a quorum. There was a period of time when there were only two members on the board,” Kovacic told Straight Arrow News. “When you only have two, they can be a quorum, and that even if one was recused, you could still have legitimate decision-making with a single individual voting. So the commission’s interpretation, clarified a decade ago, has been that two is enough, even one can be enough.”
The FTC must have a quorum to conduct business.
“A quorum * * * shall consist of three members; provided, however, that if the number of Commissioners in office is less than three, a quorum shall consist of the number of members in office,” according to the FTC rules and regulation guide from 2005.
The remaining decision-makers may hold off for now
Rebecca Kelly Slaughter and Alvaro Bedoya, the Democratic commissioners Trump fired, claim their dismissal by Trump is illegal because of a 90-year-old Supreme Court precedent from Humphrey’s Executor v. United States. It essentially found that FTC commissioners could not be fired for political reasons.
“I don’t think I’ve been fired; I think I’m still a commissioner,” Bedoya said in an interview with MSNBC on Thursday, March 20.
Kovacic says that even if Bedoya and Slaughter show up to work at the regulator every day, it is likely Chairman Ferguson’s office would not allow them to vote. However, if courts later determine that the firings were not legal, it could call into question decisions made without their input.
“That’s an argument that wouldn’t be a silly argument at all,” Kovacic added. “My guess is that a court would focus on whether their votes would have mattered. Now, that puts aside the question about whether having the debate itself is important.”
Kovacic added that once Meador is confirmed, the commission will have a quorum as defined by the regulator’s rules.
“When he shows up, you’ve got three votes,” Kovacic said. “And the magic number on a board of five is three. So they can say, ‘Even if the other two were here, their votes wouldn’t have mattered because we had a functioning majority.’ My guess is that a court, later on, would be unwilling to upset everything that the agency did while Slaughter and Bedoya were not present in the voting process but were asserting that they should have been sustained as members of the commission. A court would look at that and say, ‘Are we going to topple all of the decisions that were made?’”
The White House thinks the 1935 precedent doesn’t apply
The White House claims the Supreme Court didn’t have all the details in 1935 when deciding FTC commissioners could not be fired for political purposes. They argue the president does have the authority and point to a previous ruling.
In 1926, Myers v. United States found the president could dismiss executive branch officials without approval from Congress. Humphrey narrowed the scope of the ruling to exclude FTC commissioners, which the White House now challenges.
If Trump’s firings stand, will he replace the two Democrats?
If President Trump’s actions do pass legal muster, he may not even name the remaining two members of the commission.
“So in the new second term as president, he might adopt a more aggressive position [and] say, ‘I’m not going to fill these jobs. I’m not going to do it. I know it’s a custom, but I’m not going to,’” Kovacic said. “So it’s entirely possible that the president will say, ‘I’ve got a lot to do in this job. I’ve got so many other things to do. Take a number.’”
Still, Kovacic said he believes it is important for the commission to keep to its bipartisan mission.
“By design, you’re going to have arguments, but then that gives you greater quality control,” he told SAN. “It means that issues are going to be identified, they’ll be discussed, even if the minority doesn’t get its way. An important part of the logic of having that diversification is you’re going to have a no-holds-barred discussion and debate about all the issues that matter, and that’s going to push the majority in the direction of having to justify what they do with the threat of a possible concurring opinion or dissent.
“You take that discipline away, you have a different decision-making process,” he added. “If you know in your decision-making process that I’m going to be called out by a colleague, a smart colleague, who’s going to write a detailed and penetrating dissent, I’ve got to raise the level of my own analysis, and I can’t get away with magic tricks in the way that I might be able to if there were only three members of my own party voting on the matter in question.”
