Today, as widely expected, the Supreme Court struck down limits on the President’s ability to remove appointees to the Federal Trade Commission (FTC), overruling the decision that had allowed such limits across many independent agencies: Humphrey’s Executor v. U.S. (1935). Last year, TechFreedom filed an amicus brief highlighting the benefits of agency independence and the dangers of ending it. In his concurrence, Justice Neil Gorsuch warned that, “allowing so much legislative and judicial power to accumulate in the President’s hands invites real risks.” In her dissent, joined by the Court’s two other liberal Justices, Justice Sonia Sotomayor warned that today’s decision “creates an Executive Branch that Congress never dreamed of establishing and that it now has little hope of ever reining in.”

“Congress needs to rethink the FTC knowing that it will always be an extension of the White House,” said Berin Szóka, President of TechFreedom and a longtime advocate of FTC reform. “Even the majority warns that the FTC’s power to decide which acts or practices are unfair or deceptive is ‘startlingly abstract.’ The FTC has wielded those powers for decades to function as the de facto Federal Technology Commission. Now, the FTC is using those powers to wage a culture war, seeking to curb speech about gender-affirming care, the freedom of tech platforms to moderate content they find toxic, and the freedom of advertisers not to fund such content. The Federal Communications Commission (FCC) is using the similarly abstract idea of the ‘public interest’ to reshape broadcast media. Republicans have ample reason to fear abuse of both agencies by the next Democratic administration. Everyone who cares about limiting arbitrary government power over speech and the media should agree: These agencies can’t be trusted with such sweeping powers.”

“Minority Commissioners’ critical contribution has always been substantive critiques, not votes, so what’s needed most now is new oversight mechanisms,” continued Szóka. “Congress should stop treating hearings as opportunities for each member to score rhetorical points on camera. Lawmakers will always lack necessary subject-matter expertise. That’s why Congress created multi-member agencies in the first place. Dedicating at least part of each hearing to questioning the agency chair by a subject-matter expert would help, but Congress needs to rebuild institutional capacity for substantive oversight. If Congress limited Commissioners’ role to oversight of an agency director removable by the President, Congress should still be able to protect them against removal by the President. Or Congress could create its own purely legislative agency—like a supercharged Congressional Research Service—staffed with such experts for each agency, from both parties, each with a staff and a statutory right to be informed of what’s happening at each agency.”

“Congress should focus on rethinking the FTC and FCC as the two agencies most prone to abuse against politically disfavored speech,” concluded Szóka. Bipartisan agreement on this would not be unprecedented: Ideas that Republicans used to champion now seem like essential safeguards against Trump’s weaponization of these agencies. In 2012, Republicans proposed barring the FCC from accepting merger conditions it lacked the authority to impose by regulation. That would have helped to prevent Carr from using FCC merger review to extract major editorial changes at media companies, like CBS hiring a bias ombudsman. “But bipartisan compromises must be negotiated before it becomes clear who’s likely to control the White House in 2029—while neither side can safely assume that the regulatory state won’t be abused against its interests.” 

The case is Trump v. Slaughter, No. 25-332 (U.S.).

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TechFreedom is a nonprofit, nonpartisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.

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