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ARTICLE · 21 FEBRUARY 2025

UPDATE: 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), that the Department of Justice (DOJ) "has determined that the statutory tenure protections for members of the [FTC] . . . are unconstitutional."

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 Humphrey's Executor v. United States, 295 US 602 (1935), which for ninety years has been interpreted as preventing the president from firing FTC commissioners at will.

On February 14, 2025, FTC Chairman Andrew Ferguson aligned with the DOJ in a post to his social media account on X: "The Acting SG is right. Shielding powerful bureaucrats from political accountability is deeply anti-democratic. Humphrey's Executor should be overruled."

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