Antitrust Law Daily Wrap Up, AGENCY NEWS: Office of the Solicitor General briefly outlines legal approach to challenges to FTC, NLRB, and CPSC firings, (Feb 14, 2025)

By Brandi O. Brown, J.D.

In a letter, the Acting Solicitor General tells Senator Richard Durbin, Ranking Member of the Senate Judiciary Committee, about the Department’s plan to argue that, to the extent that it would prevent certain firings, Humphrey’s Executor should be overruled.

In a letter sent by the Office of the Solicitor General of the U.S. Department of Justice to Senator Richard Durbin, Ranking Member of the Senate Judiciary Committee, the Solicitor General advises him that DOJ has “determined that certain for-cause removal provisions that apply to members of multi-member regulatory commissions are unconstitutional and that the Department will no longer defend their constitutionality.” Specifically, the SG wrote, the Department had determined that this applies to statutory tenure protections for members of the FTC, NLRB, and CPSC.

Humphrey’s Executor. In 1935, the U.S. Supreme Court, in Humphrey’s Executor v. United States, the Court “created an exception” to the understanding, stated in a 1926 High Court decision, that the U.S. President has “unrestricted” power to remove certain executive officers that had been announced in the 1926 Court decision in Myers v. United States. Much later, in Seila Law LLC v. Consumer Fin. Protection Bureau, the SG argues, the High Court “made clear that the holding of Humphrey’s Executor embodies a narrow “exception” to the “unrestricted removal power” that the President generally has over principal executive officers and that the exception represents “the outermost constitutional limit[] of permissible congressional restrictions” on the President’s authority to remove such officers.”

“Statutory tenure protections for the members of a variety of independent agencies,” she argues, “including the FTC, the NLRB, and the CPSC, rely on that exception.” She states that the Department has concluded those tenure protections are unconstitutional and that the exception recognized in Humphrey’s Executor “does not fit the principal officers who head” the regulatory commissions she identified. “As presently constituted,” she contends, “those commissions exercise substantial executive power” and that, under Seila Law, they have “no basis in history and no place in our constitutional structure.”

SCOTUS. She states that to the extent that Humphrey’s requires otherwise, the DOJ intends to urge the Supreme Court to overrule it.

Last week, NLRB Chair Gwynne Wilcox, who was fired by Trump in a late-night email, sued Trump and the NLRB, alleging that her termination violates the NLRA, which only allows the President to remove Board members in cases of “neglect of duty or malfeasance in office, but for no other cause,” and only after “notice and hearing,” 29 U.S.C. § 153(a).

News: Antitrust ConsumerProtection FederalTradeCommissionNews