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ARTICLE · 18 FEBRUARY 2025

Constitutionality Of FTC's Structure Faces Greatest Threat Yet

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On February 12, 2025, acting Solicitor General Sarah Harris notified Senator Dick Durbin (D-IL), the ranking member of the Judiciary Committee that oversees the Federal Trade Commission (FTC)...

United StatesGovernment, Public Sector
Eric Berman
Eric Berman
Daniel Blynn
Daniel Blynn
Lee F. Berger
Lee F. Berger

On February 12, 2025, acting Solicitor General Sarah Harris notified Senator Dick Durbin (D-IL), the ranking member of the Judiciary Committee that oversees the Federal Trade Commission (FTC), that the Department of Justice (DOJ) "has determined that the statutory tenure protections for members of the [FTC] . . . are unconstitutional." A copy of the DOJ's notice is available here. Based on this determination, the DOJ signaled its intention to ask the Supreme Court to overturn a 90-year-old precedent preventing the president from firing FTC commissioners at will.

The FTC's Structure and Humphrey's Executor

The FTC is led by five commissioners appointed by the president and subject to Senate confirmation. By statute, no more than three FTC commissioners can be members of the same political party. The president may remove any FTC commissioner, but only "for inefficiency, neglect of duty, or malfeasance in office." 15 U.S.C. § 41.

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