May: DOJ Stance on Commissioner Removal Could Affect FCC
The U.S. solicitor general’s announcement that DOJ plans to stop defending removal protections for multimember commissions at independent agencies could include the FCC even though the agency wasn’t mentioned in the letter, Free State Foundation President Randolph May wrote in…
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a blog post Friday. In the letter (see 2502130063), acting Solicitor General Sarah Harris said DOJ will ask the Supreme Court to overturn the 1935 ruling in Humphrey's Executor v. FTC that protects independent commissioners from presidential removal. May wrote that the FCC’s structure is “very much like” the agencies named in the letter -- the FTC, National Labor Relations Board and Consumer Product Safety Commission. “If the SG's view of the president's removal power regarding the three identified agencies is correct, it may be difficult to distinguish the FCC,” he said. However, unlike those agencies, the FCC’s governing statute -- the Communications Act -- doesn’t contain a “for-cause” limitation on presidential removal of commissioners, May wrote. The SG’s letter relied heavily on SCOTUS' 2019 Seila Law v. CFPB decision, in which the high court ruled that limiting the ability of the president to remove commissioners only for cause was unconstitutional. The Communications Act’s lack of “for-cause” restrictions “could possibly make all the difference” on whether a future SCOTUS ruling on Humphrey’s Executor allows for easier White House removal of commissioners, May said.