Berin Szóka is President of TechFreedom.

The traditionally staid Federal Trade Commission (FTC) has become intensely political in recent years. It’s now fast becoming a key weapon in the culture war. So, no one should have been surprised when President Donald Trump took absolute control of the Commission. On Tuesday, he fired the two Democratic FTC Commissioners, Alvaro Bedoya and Rebecca Slaughter—exactly what Project 2025 called for.

The FTC has broad powers to police business practices as unfair, deceptive, or anticompetitive. Conservatives are keen to wield those powers against their enemies. The two new Republican Commissioners—both nominated by President Joe Biden last year but handpicked by Sen. Mitch McConnell (R-KY) per longstanding practice—were quick after Trump’s election to publicly commit to cracking down on the supposed “censorship” of conservatives by technology platforms. Trump picked Andrew Ferguson as the new FTC Chair, the louder of the two and the only one to promise to “fight back against the trans agenda” by suing those who promote gender therapy treatment for purportedly lacking adequate scientific substantiation.

The FTC might also be thought of as the Federal Technology Commission, given its various powers to investigate and sue technology firms. Chair Ferguson and the other remaining Commissioner, Republican Melissa Holyoak, can now use those powers to reshape the technology and social media landscape to fight what conservatives see as a Digital Culture War. Whether by harassing companies that are too “woke” or by selectively avoiding enforcement to reward Trump’s new tech allies, the FTC will become the enforcer of a new MAGA Fairness Doctrine for the Internet—with no troublesome dissents.

Below, I offer observations and recommendations to those interested in countering the weaponization of the FTC:

1. The fired Democratic FTC Commissioners may win early battles in their lawsuits but, in all likelihood, will ultimately lose at the Supreme Court—unfortunately.
2. Democrats can’t wait until the Court rules—which may take a year or more—to build an opposition to a radically politicized FTC.
3. The same goes for the Federal Communications Commission, another key weapon in the culture war.
4. Asserting direct presidential control over independent agencies destroys the basis for the European Union’s 2023 determination that the US provides “adequate” protection of Europeans’ personal data. This jeopardizes transatlantic data flows in ways that could directly affect users and undermine US companies, especially smaller ones.

The Legal Battle Ahead—and Why Trump Will Win

Fired FTC Commissioner Alvaro Bedoya has already announced his plans to sue, just as Gwynne Wilcox, a member of the National Labor Relations Board (NLRB) did after Trump fired her. He may win early battles, as she has. His case may seem strong. The FTC Act expressly limits the President’s removal power to good cause: “Any Commissioner may be removed by the President for inefficiency, neglect of duty, or malfeasance in office.” In Humphrey’s Executor v. FTC (1935), the Supreme Court upheld this limit after President Franklin Roosevelt fired an FTC Commissioner for inadequately supporting the New Deal. Critically, the Court distinguished the FTC from the postmaster whom the Court had said, in Myers v. United States (1926), could be fired because he was an “executive officer restricted to the performance of executive functions.”

Recently, however, the Court made clear it will not apply Humphrey’s, if it remains good law at all, to today's more powerful FTC. In Seila Law v. Consumer Financial Protection Bureau (2020), the Court struck down limits on the President’s power to remove the CFPB’s director. Seila applies only to single-member agencies, and the Court didn’t reach Humphrey’s, but it did say that the case lies at the “outermost constitutional limits of permissible congressional restrictions on the President’s removal power.”

Moreover, in a footnote, the Court said that “[Humphrey’s] conclusion that the FTC did not exercise executive power has not withstood the test of time.” The Court reiterated what it said in 1989 Morrison v. Olson (1989): “[I]t is hard to dispute that the powers of the FTC at the time of Humphrey’s Executor would at the present time be considered ‘executive,’ at least to some degree.’” Limiting the removal of officers with such powers is unconstitutional because, Seila noted, “Article II provides that ‘[t]he executive Power shall be vested in a President,’ who must ‘take Care that the Laws be faithfully executed.’” While the Constitution allows Congress to establish various offices, it has always “been understood to empower the President to keep these officers accountable—by removing them from office, if necessary.”

Seila’s holding makes the point clear: the President must be able to remove the CFPB’s director for any reason, not only because the CFPB has a single director but also because “the CFPB Director is hardly a mere legislative or judicial aid,” just as Humphrey’s said of the FTC in 1935. Both agencies engage in extensive rulemaking, a legislative function, while the FTC in 1935 merely “acted ‘as a legislative agency’ in ‘making investigations and reports’” to Congress. The CFPB, Seila noted, “wields vast rulemaking, enforcement, and adjudicatory authority over a significant portion of the U. S. economy.” The same goes for the FTC.

Regardless, in Collins v. Yellen (2021), the Court said that “the nature and breadth of an agency’s authority is not dispositive in determining whether Congress may limit the President’s power to remove its head. The President’s removal power serves vital purposes even when the officer subject to removal is not the head of one of the largest and most powerful agencies.” That decision is yet another sign that the Court will not uphold the FTC Act’s removal protections.

While the CFPB has some powers the FTC lacks (e.g., it “may unilaterally issue final decisions awarding legal and equitable relief in administrative adjudications”), the FTC may, like the CFPB, “seek daunting monetary penalties against private parties on behalf of the United States in federal court—a quintessentially executive power not considered in Humphrey’s Executor.” Congress has given the FTC several tools to obtain penalties since 1935. The NLRB might sufficiently resemble the FTC of 1935 to fall under Humphrey’s. The NLRB’s prosecutorial functions are exercised by a general counsel directly removable by the President, as district court Judge Beryl Howell noted in upholding the removal protections for NLRB Commissioners two weeks ago. The FTC, by contrast, serves as prosecutor, judge, and jury. The NLRB “hardly engages in rulemaking,” and generally cannot seek penalties.

If Bedoya and Slaughter prevail at the district court, it will be because the court says it’s up to the Supreme Court to set aside Humphrey’s. Even so, there’s no chance a trial court will order his or Slaughter’s reinstatement. After all, Judge Howell declined to reinstate Commissioner Wilcox even though her dismissal incapacitated the NLRB by depriving it of a quorum. By contrast, the FTC’s rules require only two Commissioners for a quorum, so in most ways, the FTC will continue functioning just as before.

What Happens at the FTC?

What will change, of course, is that there won’t be anyone to dissent as the FTC becomes ever more enmeshed in policing online speech. It could take a year or more for the Supreme Court to rule on Humphrey’s. Meanwhile, Republicans will weaponize uncertainty about how the First Amendment applies to the FTC’s powers to continue jawboning tech companies to change their editorial practices.

The Senate will quickly confirm Mark Meador, Trump’s nominee for the FTC. Trump could leave the other two seats empty indefinitely. Or he could nominate his own allies to fill them. The FTC Act doesn’t require the President to appoint members of the opposing party, let alone to allow the Senate opposition leader to pick those nominees (as President Bill Clinton agreed to start doing after Republicans swept Congress in 1994). The FTC Act says only this: “Not more than three of the Commissioners shall be members of the same political party.” So, Trump could pick Republicans who register as independents or with third parties.

And at the FCC?

More complicated is the FCC, the other agency critical to Trump’s assaults on the media. In early 2020, outraged at Twitter for fact-checking his baseless claims that the looming election would be stolen from him, Trump reportedly demanded that the FTC investigate the issue. Republican Chair Joe Simons told the President he lacked the authority to do so. Trump apparently considered firing him but ran out of time.

Instead, Trump focused on the FCC, having his administration ask the agency to issue an advisory opinion asking courts to require political neutrality in content moderation as a prerequisite for legal immunity under Section 230. Much like laws Florida and Texas enacted the following year in response to Trump being banned from social media after the January 6 attack on the US Capitol, this reinterpretation would make it hard for websites to resolve litigation when they’re sued for moderating hate speech, misinformation, and other categories of speech that MAGA culture warriors find useful. Issuing that opinion appears to be a top priority for FCC Chair Brendan Carr.

The FCC is currently deadlocked 2-2, but on Tuesday, before the FTC firings broke, Geoffrey Starks, one of two Democratic FCC Commissioners, announced that he would resign “later this spring.” If he resigned now, Republicans could ram through their agenda immediately with 2-1 votes, starting with the Section 230 advisory opinion. So, presumably, Starks planned to wait until Republicans dedicate time on the Senate’s busy floor calendar to approve the confirmation of Olivia Trusty, a longtime Republican Senate staffer.

Trump probably won’t fire both Democratic FCC Commissioners because, unlike the FTC Act, the Communications Act sets a quorum of three Commissioners. But he might fire Starks earlier to create a 2-1 majority. That would allow Carr to ram through the 230 advisory opinion without having to rely on Trusty to vote for it—which she might not.

What Can Democrats Do?

It might be a year or more before the legal dust settles on suits over the FTC or NLRB.

Democrats can’t wait that long to begin implementing Plan B. Detailed legal critiques are essential for the FTC, as they are for every agency. I propose that Democrats should prioritize finding funding for “Shadow Commissioners.” Like the District of Columbia’s “Shadow Senator,” these Commissioners would have no formal role in the FTC’s operations. Still, they would do what matters most: write detailed, substantive critiques and speak out. Those responses would, obviously, be delayed, yet could still be crucial to informing the media and courts.

The fired Commissioners are, of course, best suited to fill this role. But in the (unlikely) event of their reinstatement, taking positions on matters before the Commission might open them to accusations of prejudgment, thus disqualifying them, and taking private funding would be even more problematic. So the responsibility would have to fall on someone else. Law professors with deep experience handling the issues before the Commission would be ideal. It needn’t be a single Commissioner. Indeed, each FTC Commissioner has four attorney-advisers (who haven’t yet been fired), so it would take a team just to replicate Bedoya and Slaughter. Besides familiarity with the FTC and administrative law, First Amendment experience would be key as the FTC increasingly tries to police speech.

Disrupting Trans-Atlantic Data Flows

In late January, Trump fired all Democratic members of the Privacy and Civil Liberties Oversight Board (PCLOB). Together, PCLOB and the FTC were supposed to supervise how the US protected Europeans’ personal data—from government agencies and companies, respectively. Ending the independence of both agencies also likely dooms the European Commission’s 2023 determination that the US offered “adequate” data protection.

Europe’s 2015 General Data Protection Regulation (GDPR) requires that any third country to which Europeans’ data is transferred “should ensure effective independent data protection supervision.” The 2023 adequacy determination asserts that both the FTC and PCLOB are “independent” and specifically notes the removal limits in the FTC Act as if these offer the “complete independence” required by the European Court of Justice (ECJ). While the determination doesn’t cite Humphrey’s, it clearly relies on the case.

If the Supreme Court says FTC Commissioners and PCLOB Board members serve only at the President's will, it's hard to see how the US could possibly be deemed “adequate” under European data protection law. After Prime Minister Viktor Orbán fired Hungary’s data protection commissioner, the ECJ ruled this illegal. The US would be worse than Hungary, which at least had to restore removal protections for its data protection authority, even if it didn’t reinstate the fired commissioner. The ECJ didn’t have to resolve the question of what kind of removal protections would provide “essential equivalence” among varying constitutional systems.

But rest assured data privacy activist Max Schrems will undoubtedly raise the issue, suing yet again to challenge the US-EU data protection deal, just as he brought down three previous deals. This time, the ECJ will have to rule on the independence of the FTC and PCLOB. Absent significantly rewriting the FTC Act to requalify for Humphrey’s (if the case survives at all), it’s hard to see how any data flow deal could survive review by the ECJ.

Even more moderate protections for agency independence are under assault by the Trump administration, notably, the protections for agency Inspectors General, which the EU’s adequacy decision described as having “secure tenure” because they “may only be removed by the President who must communicate to Congress in writing the reasons for any such removal.” Trump has recently fired such watchdogs and ignored the requirement to explain himself.

If the ECJ invalidates the EU-US Data Privacy Framework and its adequacy determination, companies will fall back on using “standard contractual clauses” when they transfer Europeans’ data to the US. But it’s far from clear that this will allow current data flows to continue. The ECJ’s Schrems II judgment requires any company transferring data to conduct a “transfer impact assessment” regarding the third country’s ability to protect the data, especially when processed by additional US companies. Without dissenting commissioners, how would anyone know whether the FTC is effectively policing what US companies do with Europeans’ data or whether the US government’s surveillance practices are consistent with European fundamental rights law?

Companies transferring data might have to apply “additional (‘supplementary’) safeguards (e.g., technical measures to ensure data security, such as e.g., end-to-end encryption) that address the situation and thus ensure compliance with the Clauses.” It’s impossible to predict what this will mean in practice, but it could break functionalities that users take for granted today in Internet services. Ironically, the “Big Tech” companies that Trump claims to hate would generally be better able to handle this risk than small companies, which might simply cease providing service in Europe. In the worst case scenario, European data protection authorities might rule that even this is inadequate and order halts to the flow of particularly sensitive data.

Conclusion

However unsurprising the firing of the Democratic FTC Commissioners might be to close observers, it should still be shocking to all as a hugely important consolidation of power by an increasingly authoritarian regime. It is another move telegraphed in Project 2025 and follows a series of similar actions since January 20. Yet its full implications may take months or years to fully materialize. For anyone seriously concerned about the intersection of technology and democracy, the response must be immediate.

We cannot rely on the courts to save us.