Open Markets Files Amicus Brief Defending Congress’s Constitutional Authority to Limit Presidential Removal Power and Protect the Federal Trade Commission
“Agency members should never be tempted or pressured to violate their legal duties to pander to the President. At times, they may have to make decisions that are not politically expedient. Granting job protections to agency officials can empower them to carry out the statutory duties that Congress gave them, even if it displeases the President and his advisors.”
WASHINGTON — Today, the Open Markets Institute filed an amicus brief led by Policy Counsel Tara Pincock, Legal Director Sandeep Vaheesan, and Jamie Crooks of Fairmark Partners defending Congress’s authority under the Constitution to restrict the President’s ability to remove officials at executive agencies and departments. The brief argues that Congress, under the Necessary and Proper Clause of Article I, has broad powers to structure the federal government and ensure that the execution of the law remains independent from direct presidential control.
The filing emphasizes that “Congress has expansive authority to structure the entire federal government and restrict the President’s ability to remove officials at executive agencies and departments.” It explains that this authority “puts decisions on what kinds of officers, in what departments, with what responsibilities, the Executive Branch requires in the hands of Congress.” As the brazen lawlessness of the Trump administration shows, Congress was wise to restrict the President’s authority to remove officials at the FTC and other agencies for arbitrary or improper reasons.
The brief explains that the Constitution contains no explicit language granting the President the power to remove officials and that any such authority derived from Article II must be balanced by Congress’s clearly stated powers in Article I. It emphasizes that Congress can set limits on the President’s removal authority if those limits do not obstruct the President’s responsibility to ensure that the laws are faithfully executed.
Additionally, the brief places this constitutional argument within the framework of the Federal Trade Commission Act, explaining that Congress permitted the President to remove commissioners only for inefficiency, neglect of duty, or malfeasance in office. It adds that these statutory protections strengthen the President’s obligation to ensure the faithful execution of the law by allowing independent agencies to uphold their legal responsibilities rather than respond to short-term political interests.
The Open Markets Institute precedes this brief with other work on President Donald Trump’s illegal and unconstitutional removal of Democratic FTC Commissioners Rebecca Slaughter and Alvaro Bedoya, and the Supreme Court’s subsequent order allowing Commissioner Slaughter’s removal. These actions represent an ongoing effort by the President to assert complete control over independent agencies, including the FTC, in violation of the law and Congress’s constitutional design.
Read our previous statements on Trump’s illegal firing of FTC Commissioners Rebecca Slaughter and Alvaro Bedoya:
https://www.openmarketsinstitute.org/publications/open-markets-responds-to-aag-gail-slaters-speec
https://www.openmarketsinstitute.org/publications/statement-from-open-markets-donald-trump-attempts-to-fire-democratic-ftc-commissioners-bedoya-and-slaughter
https://www.openmarketsinstitute.org/publications/omi-condemns-scotus-ruling-on-ftc-commissioner-slaughter
https://www.openmarketsinstitute.org/publications/withdraw-robinson-patman-lawsuit-against-pepsico