Trump administration to reshape key agencies in wake of FTC, FCC departures

Two key independent agencies regulating the technology, media and telecom sectors stand to lose three Democrat commissioners, prompting questions about how they will handle regulatory affairs and raising the prospect of legal challenges.

Historically, both the Federal Trade Commission and the Federal Communications Commission have operated with five commissioners, including one chair chosen by the sitting president. The party controlling the White House — Democrat or Republican — typically had the majority at the agency, though no more than three commissioners could be of the same political party. Now, the FTC is down to two sitting commissioners, both Republican, after President Donald Trump removed the agency's two Democrat commissioners, Alvaro Bedoya and Rebecca Slaughter. This spring, the FCC will lose one of its two Democrat commissioners, Geoffrey Starks, leaving it with a 2-1 Republican majority. While Trump has nominated a third Republican commissioner for each agency, neither nominee has yet to be confirmed by the Senate.

The moves — particularly the removal of the FTC commissioners — raise significant questions about how the historically bipartisan agencies will handle forthcoming regulatory matters and what constitutes a quorum. Bedoya and Slaughter said they will sue to oppose their ousters, potentially putting any regulatory actions issued during the upcoming legal battle at risk, legal experts said.

"Assuming Commissioners Bedoya and Slaughter refuse to leave, will the Commission recognize their votes? Highly unlikely," said John Villafranco, a partner at Kelley Drye & Warren LLP, specializing in advertising and consumer protection law. "Then every decision is subject to challenge."

Changes at the FTC

Bedoya, who became an FTC commissioner in 2022, posted on X on March 18 that he was "illegally fired" by Trump. "I fought tech companies who think they can track you and your kids every hour of every day so they can pocket their next billion," Bedoya said.

A day later, Slaughter said on CNBC that Trump's move to fire her and Bedoya was a violation of the Federal Trade Commission Act, which details the reasons a commissioner may be removed from office. Slaughter became a commissioner in 2018 after being appointed to the FTC by Trump.

"The statute that governs the FTC is very clear that commissioners can only be removed for cause — for neglect, malfeasance or inefficiency. And the president did not allege any of those things on my part or Commissioner Bedoya's part," Slaughter said.

Slaughter noted that the language of the FTC Act was upheld in a 1935 Supreme Court decision known as Humphrey's Executor. That decision safeguards appointed leaders of federal agencies from being fired by presidents without just cause.

"The Supreme Court said 90 years ago that statute was valid and constitutional," she said, adding that she and Bedoya "are in it to fight as far as we need to take it."

Stephen Calkins, a professor at Wayne State University Law School, said the Trump administration may be hoping for a Supreme Court fight. Calkins noted the administrations' other moves around independent agencies. These included an executive order that requires independent regulatory agencies to submit "significant" regulations for White House review and consult with the president on priorities and strategic plans. Another order directs agency heads to work with the administration and the Department of Government Efficiency initiative to identify regulations that are unconstitutional or unlawful.

"The administration simply decided that this was the way they wanted to force the Supreme Court," Calkins said on the removal of Bedoya and Slaughter.

FTC Chair Andrew Ferguson, however, supported Trump's right to remove commissioners from the agency.

"President Donald J. Trump is the head of the executive branch and is vested with all of the executive power in our government," the FTC chair said in a March 19 statement. "I have no doubts about his constitutional authority to remove commissioners, which is necessary to ensure democratic accountability for our government."

Ferguson said the FTC would continue its work "to protect consumers, lower prices and police anticompetitive behavior" following Bedoya's and Slaughter's removal.

Quorum questions

Without Bedoya and Slaughter, the FTC has just two sitting commissioners. The US Senate Committee on Commerce, Science and Transportation this month advanced the nomination of Mark Meador, Trump's pick to fill the seat of former FTC Chair Lina Khan, though the full Senate has yet to vote on Meador's nomination. If confirmed, Meador would be the five-seat agency's third Republican.

While other agencies like the FCC have rules requiring three commissioners for a quorum, the FTC lowered its quorum threshold in 2005. Under that rule, a "majority of the members of the Commission in office and not recused from participating in a matter ... constitutes a quorum for the transaction of business in that matter."

A small FTC is not without precedent. At the end of April 2018, the announced exit of then-Commissioner Terrell McSweeny raised the very real possibility that the FTC would be left with just one commissioner: Chair Maureen Ohlhausen. The question of whether one commissioner was constituted was never put to the test, however, as Congress quickly confirmed three more commissioners at the start of May 2018.

Still, Kelley Drye's Villafranco said agency precedent supports a quorum of two.

"In 2017, the FTC, during the last weeks of the Obama administration, voted out the Quincy Bioscience complaint by a vote of 2-0," Villafranco said. Then FTC Chair Edith Ramirez and Terrell McSweeney, both Democrats, voted in favor, while Ohlhausen recused herself.

Even if a quorum is satisfied, however, Villafranco said FTC actions in the near term will likely be challenged in court. "All votes will be clouded until SCOTUS [US Supreme Court] rules" on Humphrey's Executor, he said.

FCC status check

Starks' planned exit from the FCC, meanwhile, feels far less contentious. Starks, the senior Democrat at the agency, said he informed the president of his intent to resign "this spring." Starks has served the FCC since 2019 and was appointed by Trump. He did not give a reason for leaving.

"Serving the American people as a commissioner on the Federal Communications Commission has been the honor of my life," Starks said. "With my extraordinary fellow commissioners and the incredible career staff at the agency, we have worked hard to connect all Americans, promote innovation, protect consumers and ensure national security."

In a statement, FCC Chair Brendan Carr, a Republican, lauded Starks' efforts to promote new innovations, protect consumers and bridge the digital divide.

"Commissioner Starks put in the work and leaves an impressive legacy of accomplishments in public service," Carr said.

The FCC opened up its "Delete, Delete, Delete" initiative for public comments through April 11. The proposal seeks comment on every rule, regulation, or guidance document that the FCC "should eliminate for the purposes of alleviating unnecessary regulatory burdens."

The resignation of Starks would leave Democrat Commissioner Anna Gomez as the lone voice of dissent at the FCC. Starks and Gomez clashed with Carr on several recent items, including the elimination of diversity, equity and inclusion initiatives at the agency and an FCC investigation into the equal opportunity hiring practices of Comcast Corp.

Olivia Trusty, a veteran Senate staffer who most recently served as policy director for the US Senate Commerce Committee, is Trump's nominee to take the third Republican seat at the five-seat agency. Upon Starks' exit and Trusty's confirmation, the FCC would have a 3-1 Republican majority.