Shakeup at the FTC: Agency enters uncharted territory following President Trump’s firing of Democratic Commissioners

In response to the firings, FTC Chair Ferguson released a statement saying that he has “no doubts about [President Trump]’s constitutional authority to remove Commissioners” because the President “is the head of the executive branch and is vested with all of the executive power of our government.”¹ By contrast, both Commissioner Bedoya and Commissioner Slaughter issued statements calling their firings illegal and said they intend to sue the government over their dismissals.² Such a legal challenge has the potential to tee up an opportunity for the Supreme Court to overrule 90 year-old precedent that makes it illegal for the President to remove FTC Commissioners before the conclusion of their term except in cases of “inefficiency, neglect of duty, or malfeasance in office.”³ The FTC firings are the latest in a series of terminations by the Trump administration of Democratic leaders of independent federal agencies, including Democratic appointees at the Equal Employment Opportunity Commission (EEOC) and National Labor Relations Board (NLRB).⁴ A challenge to the NLRB firing is currently making its way through the courts. 

Background 

The FTC was created in 1914 when the Federal Trade Commission Act (FTC Act) was signed into law. Under the FTC Act, the Commission is to consist of five Commissioners, appointed by the President with advice and consent of the Senate. The President appoints the Chairman of the agency from the Commission’s membership. No more than three Commissioners may be members of the same political party, and Commissioners serve seven year terms⁵. Under the FTC Act, a Commissioner may only be removed by the President for “inefficiency, neglect of duty, or malfeasance in office.”⁶ 

As of March 19, 2025—and at least until any injunction is sought and entered—the FTC consists of two Republican Commissioners: Chair Andrew Ferguson and Commissioner Melissa Holyoak. President Trump’s nominee to fill the third Republican Commissioner slot—Republican Mark Meador—was advanced by the Senate Commerce Committee on March 12, 2025. Meador’s nomination still needs to be voted on by the full Senate,⁷ but President Trump’s firing of Slaughter and Bedoya means that the FTC has a Republican majority even before Meador is confirmed. 

Supreme Court precedent bars presidential dismissal of independent commissioners without cause 

The Supreme Court’s 1935 decision in Humphrey’s Executor v. United States established that the intent of the FTC Act was to limit the President’s power to remove FTC Commissioners except for “inefficiency, neglect of duty, or malfeasance of office.⁸ President Trump’s firing of the Democratic Commissioners at the FTC—without any assertion of inefficiency, neglect of duty or malfeasance—could provide the Supreme Court with an opportunity to decide whether Humphrey’s Executor remains good law. Humphrey’s Executor is also currently at issue in a challenge by Democratic NLRB member Gwynne Wilcox, who was fired by President Trump in late January 2025. In that case, a district court judge ruled that Wilcox’s dismissal was unlawful and void under Humphrey’s Executor and ordered that she be permitted to continue her role as a member of the NLRB.⁹ 

Given the direct applicability of Humphrey’s Executor to the FTC, we anticipate that the district court that hears the terminated Commissioners’ expected legal challenge will block the firings fairly quickly, assuming that no factual basis for the firings under the statute is provided by President Trump. This would reinstate Commissioners Bedoya and Slaughter to their positions pending appeal of the decision. The real showdown will be at the Supreme Court, assuming the case makes it that far. 

Practical implications 

The practical question for businesses to consider is what the implications are of the terminations of Commissioners Slaughter and Bedoya on the antitrust enforcement agenda of the FTC, and how the likely legal fallout will affect how current and future matters are adjudicated by the agency. 

Pending the confirmation of Meador and any potential court order reinstating Commissioners Slaughter and Bedoya, the FTC will be staffed by only two Commissioners. As a practical matter, this will have little effect on most enforcement decisions. Even with just two Commissioners, the FTC will still have a quorum to take action on most matters. While the FTC Act is silent on what constitutes a quorum, according to a 2005 amendment to the FTC’s Rules of Practice, a quorum is defined as a “majority of the members of the Commission in office and not recused from participating in the matter…”¹⁰ The 2005 amendment cites as support a 1995 Securities and Exchange Commission (SEC) rule providing that, if the number of Commissioners in office is less than three, “a quorum shall consist of the numbers of members in office,” and that two members shall constitute a quorum for matters where Commissioners disqualified themselves from consideration or are otherwise disqualified from consideration.¹¹

In addition, in February of 2018 the FTC amended its Rules of Practice to grant authority to Commissioners to allow the Commission to act in certain circumstances even if it lacks a quorum (as defined by the 2005 amendment).¹² Such circumstances may exist in cases where the action would not adversely affect a party or intervenor entitled to petition the full Commission for review or where parties or intervenors who could otherwise file such a petition waived their right to discretionary review by the Commission.¹³ The 2018 amendment also grants the Commission’s General Counsel the authority to carry out certain delegated functions of the Commission even in matters where no Commissioner is participating. As long as neither Chair Ferguson nor Commissioner Holyoak are recused from a matter, the FTC will have a quorum of two and a Republican majority to take action. Of course, if a district court blocks the firings of Commissioners Bedoya and Slaughter and reinstates them to their positions, the Commission will continue with two Republican and two Democratic Commissioners (until Meador is confirmed), resulting in potential 2-2 split votes on certain matters. When the Commission vote is split 2-2, no Commission action may be taken. 

What does that mean for companies with matters before the FTC? For the most part, companies with active matters before the FTC are likely to see few if any changes from the shakeup at the FTC, with career staff continuing to manage matters on a daily basis. One change, however, is that there will be no Democratic Commissioners to issue dissenting statements criticizing or pointing out the holes in statements and decisions made by the Republican Commissioners—which deprives defendants of the ability to cite those dissents in court against the FTC (as defendants often do). 

What happens if, as expected, a district court blocks the firings, resulting in the reinstatement of Commissioners Bedoya and Slaughter to their positions? While there may be the perception of “business as usual” while an appeal is pending, should the Supreme Court ultimately overrule Humphrey’s Executor—and find that the firings of Commissioners Bedoya and Slaughter were legal—any FTC decision in which Bedoya and Slaughter voted during the period the injunctions were in place may be subject to challenge on this basis if their votes made a difference in the outcome.¹⁴ Should the Supreme Court decide not to overrule Humphrey’s Executor, the inverse is true: any decisions made by the Commission during the period in which Commissioners Slaughter and Bedoya are sidelined could also be subject to challenge. 

Finally, should Humphrey’s Executor be overturned, there is also the possibility that, despite the statutory requirement, President Trump will decide not to appoint two new non-Republican Commissioners, leaving the Commission operating indefinitely with just three Republicans. 

Conclusion 

Hogan Lovells will be closely monitoring developments at the FTC, as well as any potential legal challenges to President Trump’s removal of Commissioners Slaughter and Bedoya.

Please do not hesitate to reach out to your Hogan Lovells contact if you have any questions as to how the new makeup of the Commission may impact your business. 

Authored by Logan Breed, Jenny Fleury, Chuck Loughlin, Ilana Kattan, and Jill Ottenberg.