U.S. Supreme Court Says the President Can Fire FTC Commissioners

Overruling a decision of the U.S. Supreme Court from 1935, the U.S. Supreme Court decided yesterday that the President has the authority to fire FTC Commissioners at will.  In a 6-3 decision, the Court held that the President had lawfully fired FTC Commissioner Rebecca Kelly Slaughter back in 2025. 

The Federal Trade Commission was created by Congress in 1914 to be an “independent" agency, where the agency's five Commissioners could only be removed by the President for “inefficiency, neglect of duty, or malfeasance in office.”  The President argued that this restriction violated the separation of powers in the Constitution, and the Court agreed.  

Because the FTC exercises executive power – promulgating rules, enforcing those rules, and then bringing lawsuits on behalf of the government — the Court held that the FTC must be controlled by the President, since, under the separation of powers, the executive power is vested in the President.  

The court explained, “To discharge the duties of his trust, the President must have the assistance of officers he can trust.  Although it is up to the Senate to decide whether to confirm those with whom the President would prefer to work, neither Congress nor the courts may saddle him with those with whom he cannot work.  Subordinates who exercise the President's power are subject to removal by him.  Then, and only then, can they remain accountable to the President, and the President to the people.” 

So, what does this mean for advertisers? 

The Commission is headed by five Commissioners who are nominated by the President and confirmed by the Senate, each of whom serves a seven-year term.  The President chooses which Commissioner will serve as Chair, and no more than three Commissioners can be from the same political party.  Currently, there are only two FTC Commissioners serving on the Commission -- both Republicans -- FTC Chairman Andrew N. Ferguson and Commissioner Mark R. Meador.  

Typically, when a new President takes office, the current Chair resigns, which gives the President the opportunity to appoint someone to the Commission from the President's own party.  This would typically result in control of the Commission shifting from one political party to the other.  In other words, the FTC ordinarily has three Commissioners from the President's own party and two Commissioners from the other party. 

Historically, then, when a new President has taken office, the President not only appoints the Chair, but has had the opportunity – through the traditional resignation of the Chair -- to shift the balance of political power to the President's own party.  The Court's decision here ensures that the President will have the power to do that in the future.  

Because the President can only appoint three Commissioners from the same political party, the FTC has often been a place where a vigorous debate about issues takes place, often quite publicly.  While the minority party Commissioners' power may have been limited because they are in the minority, through dissenting opinions and other public statements, their views often provide a useful window into the FTC's thinking and into the (different) ways that the FTC Act and other laws that the FTC enforces can be interpreted.  Now that FTC Commissioners can be fired at will, it is unclear whether Commissioners with dramatically different views will be appointed to the Commission, and if they are, whether they will feel comfortable expressing them. 

With Commissioners serving seven-year terms, leading an agency that had historically been made up of very long-serving staff, where there is pretty strong alignment about the agency's mission,  over the last few decades, there has historically been remarkable continuity in the FTC's approach to consumer protection.  When political parties change, and when the FTC's leadership changes, there are certainly shifts in enforcement priorities and approaches.  But, there was also a strong sense that the FTC's views about how laws should be interpreted didn't change all that much.  When administrations have changed over the years, advertisers didn't think that the rules about, say, environmental marketing or influencer disclosures, were going to change all that much.  With the FTC Commissioners now answering directly to the President, it may be that we start to see less continuity in how the FTC's interprets and enforces the law.  We may see an FTC that is much more directly focusing on the current President's agenda.  This means that advertisers should have at least some caution about relying on older rules, guidance, and orders, which just may simply not reflect the current Commission's views.