Cruz Supports Presidential Firings at FTC, Supreme Court Reversal of Humphrey
The president should be able to fire members of the FTC, and it’s good the Trump administration is preparing for a potential U.S. Supreme Court case that could make that a reality, Senate Commerce Committee Chairman Ted Cruz, R-Texas, told us Thursday.
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Cruz said recent executive action from President Donald Trump and DOJ’s position on the issue set the stage for a reversal of Humphrey’s Executor v. U.S. (see 2502130050). The unanimous 1935 SCOTUS decision found President Franklin Roosevelt’s removal of FTC Commissioner William Humphrey unjustified. Trump’s executive order issued Tuesday concerning “so-called independent agencies is clearly designed to tee up a challenge,” said Cruz.
“Under the Constitution, all executive power is vested to the president of the United States, and, I think, the notion of a so-called independent agency that is not under the authority of the executive is in direct conflict with the text of the Constitution,” he said. “I think the Supreme Court got it wrong in Humphrey’s Executor, and I’m glad the administration is going to challenge that and try to return the state of the law to the way it was for the first 150 years of our nation’s history.” FTC Chairman Andrew Ferguson also publicly supported reversal.
Democrats are opposed. There’s a tradition of honoring FTC terms, and it should continue, said Sen. Ed Markey, D-Mass.: “Otherwise there will be a loss of culture at independent agencies that have been central to building confidence in the rulemaking stage. Checks and balances are at the heart of what makes our country great, and the current president is insisting on becoming a king,” which is “going to come back to haunt our country.”
Senate Intelligence Committee ranking member Mark Warner, D-Va., and Sen. Brian Schatz, D-Hawaii, also were firmly opposed Thursday. “Absolutely not,” said Warner. “There’s a reason Congress set up independent agencies, and I just wonder when more than a few of us are going to stand up and call this illegal activity out.”
“The law is not unclear about this,” said Schatz
The Senate Commerce Committee scheduled a Tuesday confirmation hearing for FTC nominee Mark Meador and Office of Science and Technology Policy nominee Michael Kratsios (see 2502190077). Meador is likely to field questions about executive action potentially impacting the FTC and the potential reversal of Humphrey's, which legal experts have predicted, given the court’s conservative majority.
Meador, a former antitrust staffer for Sen. Mike Lee, R-Utah., is an attorney at Kressin Meador Powers. His background includes stints at the FTC, DOJ, the Texas attorney general’s office and the Heritage Foundation.
Members of the Senate Commerce Committee reached Thursday were hesitant to predict a “non-controversial” path for Meador’s confirmation.
“Is there such a thing anymore?” said Sen. Jerry Moran, R-Kan. “I don’t know the answer to that. I don’t know what Democrats are thinking. I don’t know what Republicans are thinking.”
“I don’t know,” said Sen. Deb Fischer, R-Neb. “You should probably talk to Democrats.”
Sen. Maria Cantwell, D-Wash., said she’s been focused on other issues. As did Sen. Roger Wicker, R-Miss.