Acting DOJ Official Seeks Overturn of Precedent Protecting Independent Commissions
Acting U.S. Solicitor General Sarah Harris told Senate Judiciary Committee ranking member Dick Durbin, D-Ill., on Wednesday that DOJ plans to stop defending tenure protections that bar a president from firing a commissioner from an independent agency at will, including…
Sign up for a free preview to unlock the rest of this article
Communications Daily is required reading for senior executives at top telecom corporations, law firms, lobbying organizations, associations and government agencies (including the FCC). Join them today!
FTC commissioners. Harris said she plans to ask the U.S. Supreme Court to overturn that precedent, established in its 1935 Humphrey’s Executor v. U.S. ruling, a shift that would also affect the FCC. DOJ “has determined that certain for-cause removal provisions that apply to members of multi-member regulatory commissions are unconstitutional,” Harris said in a letter to Durbin. The high court has held that Humphrey’s Executor “applies only to administrative bodies that do not exercise ‘substantial executive power’” and has explained it “misapprehended the powers of the ‘New Deal-era FTC’ and misclassified those powers as primarily legislative and judicial.” She said the precedent “thus does not fit the principal officers who head” the FTC and two other agencies: the National Labor Relations Board and Consumer Product Safety Commission. The U.S. Chamber of Commerce and other conservative groups asked SCOTUS in July to overturn Humphrey’s Executor in Consumers' Research et al. v. Consumer Product Safety Commission (see 2407290027).