What Humphrey’s Legacy Protects

Overturning the precedent that protects FTC independence would invite corruption and public distrust.

Like many other Americans, I was struck by a single image from President Donald J. Trump’s second inauguration in January 2025. It was the photograph of the President surrounded, not by members of the U.S. Congress or his prospective cabinet, but instead by the billionaires who run most of the largest companies in the world.

Unlike most Americans, I viewed that image through a very specific lens: that of the work of the U.S. Federal Trade Commission (FTC), where I had been serving as a Democratic commissioner since President Trump first appointed me in 2018. From that viewpoint, I saw not just billionaires but also men who ran companies that were in active litigation against the FTC. Would the President intervene in our cases and offer deals to his newfound political allies? Would the leadership of the FTC be able to withstand that pressure?

I took great comfort knowing that both clear statutory language and nearly a century of unanimous U.S. Supreme Court precedent would protect us from removal if we resisted the President’s political interference. That sense of security turns out to have been false. Not two months later, President Trump purported to remove me and my fellow Democratic commissioner, Alvaro Bedoya.

The legal challenge to that removal, Trump v. Slaughter, is currently pending in the Supreme Court. The U.S. District Court for the District of Columbia ruled in my favor, and I was allowed to resume my post briefly, before the U.S. Court of Appeals for the D.C. Circuit stayed that ruling. This exercise was repeated again in September, when the D.C. Circuit vacated the stay and returned me to work, before the Supreme Court stepped in.

The Supreme Court reinstituted a stay of the lower court decision and simultaneously announced that it would consider whether to overturn Humphrey’s Executor v. United States, the 1935 decision in which the Supreme Court unanimously found constitutional the statute that prevented President Franklin D. Roosevelt from firing conservative FTC commissioner William Humphrey without cause. For 90 years, Humphrey’s Executor has been understood to allow Congress to prohibit the President from removing the heads of independent regulatory agencies from removal without cause.

As the litigant in Trump v. Slaughter, I have become very familiar with the legal arguments surrounding the assertion that the President should be able to control—including by firing—any government officer who is not serving in the U.S. Congress or the judiciary. This claim is known as the unitary executive theory, and the legal debate around it has spanned decades, with proponents of an empowered executive invoking the President’s “conclusive and preclusive” presidential power and largely ignoring the history of independent boards and commissions in the United States. The legal debate is live at the Supreme Court and can be traced in the extensive briefing in my case, so I will not rehash it here.

Notably, however, the litigation surrounding my removal has largely excluded discussion of the practical effects of the removal restrictions on multimember, bipartisan boards and commissions. I experienced these effects, and the resulting public benefit, during the nearly seven years I sat on the FTC—as a minority commissioner, a majority commissioner, and the acting chair.

More than protecting any commissioner’s employment status, removal protections guard against corruption, incentivize consensus-based decisions, and provide transparency and accountability in the work of the FTC that affects Americans across the economy.

If the Trump Administration persuades the Supreme Court to overturn Humphrey’s Executor, the costs will be profound for Americans who expect and rely on government officials to make decisions without fear or favor—without fear of getting fired for failure to do a favor for corporations that break the law and the billionaires who profit from the lawbreaking.

The most obvious implication of removal protections is insulation against corruption in economic decision-making. The FTC’s decisions can have profound consequences for companies under investigation, as well as their competitors, suppliers, customers, and employees.

The FTC investigates and challenges illegal mergers, anticompetitive conduct, fraud, deceptive advertising, and violations of privacy, among other illegal business practices. Market integrity depends on these investigations being conducted and resolved based on the laws and the facts at issue in each individual case, not the influence of wealthy political donors.

When commissioners know that they can serve their terms without risk of arbitrary removal, they can pursue the facts and the law wherever they may lead. On the other hand, if a President can fire a commissioner for failing to grant a favor to a donor or ally, the public is more likely to question the integrity of the agency’s work. Two examples illustrate this point.

In 2019, the FTC settled an investigation into whether Facebook had violated not only the law but a previous FTC settlement in failing to protect the privacy of user data. The FTC majority and Facebook agreed that the company could pay a $5 billion financial penalty to resolve the case, without admitting wrongdoing.

My fellow minority Commissioner Rohit Chopra and I dissented from that decision because we did not believe that the settlement would be adequate to deter Facebook from violating the law. But I was not concerned that the Republican majority supported the settlement because of pressure from the first Trump Administration or because Facebook was a large donor to the President—at the time, it was not. And the public could have confidence that corruption was not at play in the decision because it could read the dissenting statements, in which we would have called out any corruption if we had seen it.

Contrast the FTC’s 2019 Facebook settlement with its 2025 settlement with Amazon involving allegations that Amazon’s prime subscription system illegally trapped customers who wanted to cancel. That 2025 settlement was inked on the eve of trial, after the FTC staff had won multiple pretrial motions. In the settlement, Amazon agreed to pay $2.5 billion dollars, and the FTC allowed the company and its named executives to avoid admitting liability.

The settlement happened after Commissioner Bedoya and I were removed from the FTC and after Amazon donated $2 million to President Trump’s inauguration, donated an unspecified amount to the President’s White House ballroom project, and paid the first lady $40 million for the rights to a documentary about her life.

Was this settlement the best outcome for consumers, or was it a sweetheart deal driven by political pressure from the White House? I do not know. I was not allowed to do my job and analyze the non-public information that could have helped me formulate a clear view.

At a minimum, the appearance of impropriety is created by the President’s unprecedented approach to seeking and accepting gifts from parties with business before the government. Without the voices of independent commissioners, the public cannot have confidence that the agency’s leadership is taking actions in the public interest and not in the interest of billionaire corporations.

Even in normal times, when naked corruption is not the routine practice of an administration, the independence of multimember, bipartisan boards and commissions supports market stability by incentivizing consensus-based decisions, which, in turn, improve predictability and continuity.

Although commissions can, and sometimes do, make decisions on a party-line basis, they know that such decisions are less likely to endure than ones that are the product of consensus. When party control shifts, party-line policies are likely to be overturned. If the majority wants a decision to last, it has the incentive to find bipartisan support.

Two examples from the end of the Biden Administration illustrate this point.

In 2023, the FTC began an overhaul of the rule governing what information merging parties need to provide the antitrust agencies evaluating their deals. Although the Democratic commissioners were in the majority and could have passed a new rule on a party-line basis, then-Chair Lina Khan decided to negotiate with our Republican colleagues and ultimately make some concessions in order to earn their votes for the rule.

The resulting rule has been maintained at the agency and even defended in court by those Republican commissioners who became the majority when President Trump was inaugurated. The bipartisan consensus we reached supported the durability of the rule, which ultimately benefits the public we serve, including the businesses who rely on predictability and reliability.

Even without a change in party control, consensus can help insulate FTC decisions from legal challenge. When I was acting chair in 2021, the FTC was divided 2–2 and was considering the proposed acquisition of Grail, a bio-tech company providing cancer-detecting blood tests, by Illumina, a company that controlled the DNA-sequencing technology needed to make those tests work.

I worked hard to get unanimous, bipartisan support for the FTC’s challenge to the acquisition. Several years later, Chair Khan also worked hard to get bipartisan support—from a commission that was split 3–1 at the time—for the agency’s final opinion on the merger.

Christine Wilson, the lone Republican commissioner, ended up concurring with the majority’s conclusion that the merger was illegal and partially dissenting with respect to an element of the majority’s analysis. Commissioner Wilson’s opinion was reflected closely in the ultimate decision issued by the U.S. Court of Appeals for the Fifth Circuit, upholding the FTC’s challenge to the acquisition. Had we not worked to find common ground with Commissioner Wilson as to the bulk of the FTC’s opinion, the outcome in the Fifth Circuit might have been quite different.

And this brings me to the final practical benefit of independence on boards and commissions: Commissioners have the freedom to dissent from agency actions and provide transparency to the public, the courts, and Congress, which in turn promotes accountability for the majority. When consensus cannot be reached—because either side is unwilling to find it or because the difference of opinion is too stark to find common ground—it is helpful for the public, and for parties before the FTC, to understand the disagreements.

A majority will, necessarily, hold its decision out as the best possible one in any given circumstance. Without the benefit of alternative views shared by commissioners who had access to the same body of non-public information, the public has no way of knowing what other options could have been pursued, or how properly to contextualize majority decisions.

This is not a partisan point. Current Chairman Andrew Ferguson has voiced this perspective, saying:

If you have an agency that is exceeding the law, abusing the companies that are purports to regulate, it’s helpful for markets, for courts, for litigants, for government transparency to have people in the other party pointing this out and saying it in dissents. Like you know, I wrote four hundred plus pages of descents during my time as a minority commissioner. I think that that adds value.

There have been powerful and prescient dissenting and concurring opinions from commissioners across the political spectrum. I may not agree with all of them, but I deeply appreciate the value of having different perspectives aired for the public to draw its own conclusions.

Of course, there are practical and operational drawbacks to decision-making by multimember, bipartisan boards, and I do not discount them. Certainly, work can be more cumbersome when five decision-makers must evaluate information, ask questions, and propose alternatives.

Throughout my tenure at the FTC, each of the colleagues with whom I served had strong opinions and particular learning styles. This is a good thing for the quality of the agency’s decisions, but it can be challenging operationally for staff who must answer to all five commissioners. Decisions necessarily take longer than they might with an agency headed by a single, decisive leader. I am confident, however, that is a small price to pay for the substantive benefits independence provides.

If the Supreme Court overturns Humphrey’s Executor, there will be significant legal ramifications throughout the extensive structures of government that were set up in reliance on this precedent. The greatest cost, however, will be borne by the public, who will lose the benefits of independent, expert leadership at agencies that have long been entrusted by Congress with ensuring a fair and level economic playing field.