Andrew Ferguson, chair of the Federal Trade Commission, has defended President Donald Trump’s firing of the panel’s two Democratic commissioners — and said it was entirely legal.
“I have no doubts about his constitutional authority to remove Commissioners,” Ferguson wrote in a statement last week, after the solicitor general issued the order to fire Alvaro Bedoya and Rebecca Kelly Slaughter. Ferguson locked both the commissioners out of their offices.
But just two years ago, during his confirmation hearing, Ferguson answered questions about presidential removals of FTC commissioners quite differently, at least on their face.
Ferguson said then that he would “abide by Supreme Court precedent,” pointing specifically to the 1935 Supreme Court ruling in Humphrey’s Executor v. United States that barred the president from firing FTC commissioners, except as outlined by Congress.
“Although subsequent decisions have drawn Humphrey’s Executor into question,” Ferguson wrote in 2023 in response to questions from Sen. Maria Cantwell, “the Supreme Court has instructed time and again that ‘it is [the Supreme] Court’s prerogative alone to overrule one of its precedents.’ … The Supreme Court’s ‘decisions remain binding precedent until [it] see[s] fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing validity.’
The congressionally enacted Federal Trade Commission Act only allows the president to remove commissioners for “inefficiency, neglect of duty or malfeasance in office,” none of which have been alleged about Slaughter or Bedoya by the Trump administration or the FTC.
Bedoya pointed out in an interview with NOTUS the discrepancy between Ferguson’s current posture and his 2023 confirmation hearing answers.
When asked what he makes of the White House’s argument that Humphrey’s Executor no longer applies to the FTC, Bedoya said, “My response is solicitor general Andrew Ferguson’s response to Maria Cantwell on the Senate when he was asked the same question, which is Humphrey’s Executor remains good law and only the Supreme Court can overturn it.”
Bedoya told NOTUS he and Slaughter plan to file a lawsuit on Thursday against the firings.
The FTC did not directly respond to a request for comment on Ferguson’s 2023 statement.
“President Donald J. Trump is the chief executive and has constitutional authority to make personnel decisions within the executive branch. The Supreme Court made clear in 2020 that the President may remove officers at will from agencies that wield substantial executive power. As the Solicitor General explained in her letter, the FTC undoubtedly wields substantial executive power. The Trump-Vance FTC will continue its work in protecting consumers, lower prices, and policing monopolies,” FTC public affairs director Joseph Simonson wrote in a statement.
The eventual ruling could have sweeping implications over how presidents can control what have previously been treated under the law as independent agencies. The White House and Ferguson are arguing that the FTC is not an independent agency, but instead wields significant executive power.
“My own view is I expect the Supreme Court probably will overrule Humphrey’s Executor,” Ferguson said Tuesday at the Free State Foundation’s annual policy summit, adding that it’s also possible the Supreme Court will rule that the “2025 FTC is so sufficiently different from the 1935 FTC” that the 1935 ban on commissioner removals is no longer relevant.
Meanwhile, Republicans on the Hill deferred to the courts over the legality of Trump firing of the commissioners. (Democrats have previously told NOTUS they’re unsure whether they’ll block Trump’s FTC nominee Mark Meador over the firings, also pointing to the courts to sort it out.)
Sen. Josh Hawley told NOTUS he hopes that the administration tries to fill the remaining seats as soon as possible, although he expects it’ll have to wait for the Supreme Court to rule on the case.
“The DOJ has a lot of overlapping jurisdiction, but I assume that the idea is to fill the FTC and now vacant FTC spots,” Hawley said. “I’m sure this is also setting a test case for Humphrey’s Executor. So I hope that’ll proceed quickly.”
“Those things can take a long time, but I wouldn’t want to see the FTC sidelined indefinitely,” Hawley said.
Other Republicans on the Hill evaded the question or avoided it altogether.
“I’m a former AG, making sure we’re protectinging Americans and protecting Floridians is important, but at some point we’ve got to start making sure we are rightsizing government,” Florida Sen. Ashley Moody told NOTUS. “We are spending off a cliff, and I think any efforts to do that while maintaining effectiveness and efficiency are good things.”
One of the fired commissioners testified at a House committee hearing Wednesday that was intended to be about online safety. The hearing devolved into a partisan brawl, as Democrats insisted that a full and independent FTC was essential to maintaining online safety and Republicans accused Democrats of using the hearing to “waste time complaining about federal workers.”
The fired commissioner defended her work during the hearing.
“The FTC’s staff and work are profoundly efficient. Last year, we returned $337 million directly to American consumers’ pockets,” Slaughter told the House Committee on Energy and Commerce.
Rep. John James threw the most forceful punch at the fired FTC commissioners.
“Democrats are furious, they’re incensed, they’re outraged over these firings, while Republicans are outraged about dead babies,” James said. “You ever think that maybe you might not be as good at your job as you thought you were?”
Others, including Reps. Erin Houchin and Russell Fry, refused to comment on the fired FTC commissioners, turning the blame on reporters instead for asking about them.
“I think you’re doing tremendous disservice, focusing on the FTC when we have parents here talking about online safety,” Fry told NOTUS.
Slaughter pushed back against the criticism of her presence at the meeting, saying a fundamental change in how courts treat the FTC by allowing commissioners to be fired at-will by the president would put online safety at risk.
“I would also like to not be here talking about my employment status, I would like to be here talking about the important work that the FTC has been doing and will be doing in the future,” Slaughter told the committee.
“I’m very concerned that my attempted removal not only eliminates the bipartisan voices that Congress intended, but it also sends a message to the majority commissioners that they too could be removed at a whim if they’re not willing to take action that may be a favor to some of these big companies, the most powerful companies in the world,” Slaughter said.
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Claire Heddles and Samuel Larreal are NOTUS reporters and Allbritton Journalism Institute fellows.