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Abstract

In March 2025, the President removed two commissioners of the Federal Trade Commission (“FTC”). The removed commissioners called the removals unlawful and challenged them in court, citing the FTC Act’s for-cause removal protection and the Supreme Court’s decision in Humphrey’s. After President Roosevelt removed an FTC commissioner, the Supreme Court in Humphrey’s in 1935 upheld the constitutionality of the FTC Act’s removal limitation based on the FTC being expert, nonpartisan/independent, quasi-judicial, and quasi-legislative. The Court in Seila in 2020 held that the President has “unrestricted removal power” as to the executive branch unless the Humphrey’s exception for “multimember expert agencies that do not wield substantial executive power” or the Perkins/Morrison exception for certain inferior officers applies. The latter is clearly inapposite here. But so is Humphrey’s. The modern FTC has nothing to do with the Humphrey’s quartet. It also wields considerable executive power under the tripartite framework outlined in Seila owing to Congress’s own choice since Humphrey’s to grant the FTC such powers. And today’s FTC has considerable authority in the international-relations context generally and in cross-border law enforcement in particular. Because today’s FTC exercises significant executive power, the FTC Act removal limitation is unconstitutional, and the President’s action was lawful. From it also comes a benefit to the rule of law. The Supreme Court’s treatment of Humphrey’s in recent years has both left in place, to quote Justice Thomas, a “direct threat to our constitutional structure” and caused great uncertainty in the lower courts, which, because the Court has expressly refused to overturn Humphrey’s, have consistently upheld the constitutionality of statutory removal limitations as to “multimember expert agencies” even if they “wield substantial executive power.” The President followed the Constitution, in light of, and not in spite of, precedent, and the Supreme Court now has the perfect vehicle—the same facts as Humphrey’s, albeit with a vastly different, fundamentally executive FTC—to end the uncertainty it has created and repudiate what it has left of that major threat to the Constitution.

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