The two former US Federal Trade Commissioners who served the last time the agency had only two members said today that the agency can still function effectively with diminished ranks, but it doesn’t speak with as strong a voice.
The two former US Federal Trade Commissioners who served the last time the agency had only two members said today that the agency can still function effectively under those conditions, but doesn’t speak with as strong a voice. Former acting FTC Chairman Maureen Ohlhausen, who ran the agency during the first 15 months of the first Trump administration, described it as a “very unique” experience but said at a Washington DC event* that she was helped by the fact that she and fellow commissioner Terrell McSweeny shared similar views about the proper role and responsibilities of the agency.
At the same event, McSweeny, a Democrat, said it had helped that she and Ohlhausen, a Republican, had served together on the commission and that the agency has a strong bipartisan tradition. She praised Congress for setting it up to accommodate a range of views.
Ohlhausen said when an agency vote on an enforcement action is bipartisan, there is a better chance of its position prevailing in court.
The FTC currently has two commissioners, both Republicans, because President Donald Trump fired Democratic commissioners Alvaro Bedoya and Rebecca Slaughter due to policy disagreements. Both have filed suit to get their jobs back, contending that the firings are illegal because of the Supreme Court’s unanimous 1935 decision in Humphrey’s Executor v. US, which states that the president can only fire members of independent commissions for cause (see here).
In Humphrey’s Executor, the court ruled that the president does not have “illimitable power of removal” for certain officials of quasi-legislative and quasi-judicial bodies such as the FTC (see here). But conservatives argue that the precedent is no longer relevant because the agency also now performs quasi-executive functions as well (see here).
Ohlhausen said that she and McSweeny were banned from speaking to one another about agency business unless a formal meeting was called, though they could communicate through their staffs.
She told reporters afterward that it’s not clear whether, when the FTC has only two commissioners, it can bring an enforcement action if one of the commissioners is recused on the matter.
The agency could get a third commissioner if the Senate votes to confirm Mark Meador. He is a Republican nominated by Trump and is a former Senate staffer and antitrust lawyer at the FTC and Department of Justice. He has been approved by the Senate Commerce Committee, but Senate Democrats have been blocking a vote by the full Senate because they object to Trump’s firing of Bedoya and Slaughter.
Trump’s firing of Bedoya and Slaughter is part of a broader effort to give the president more control over independent agencies.
Because of an executive order, the FTC must now submit more of its proposed regulations to the Office of Management and Budget before sending them out for comment. Its enforcement plans are also subject to greater scrutiny from that office.
FTC Chairman Andrew Ferguson said on Wednesday that “Independent agencies are not good for democracy,” and because the president is the only elected official in the executive branch, accountability runs through him.
Ohlhausen, McSweeny and the other two panel members — former FTC Chairman Jon Leibowitz and former Commissioner Noah Phillips — all said that it was valuable to have the FTC as an independent agency, but several noted that the president already has considerable ability to influence the agency, even without the power to remove commissioners.
Phillips, a Republican, pointed out that FTC chairs have been at the White House for policy announcements.
*American Bar Association Antitrust Spring Meeting 2025. Washington, DC. April 2-4, 2025.
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