Questions Remain: Will Trump Fire FCC Democrats Following FTC Dismissals?

The firings are tied to the administration’s assertion of the so-called unitary executive theory, which has become a mainstream Republican view under Trump. The administration is also asking the U.S. Supreme Court to reverse Humphrey's Executor v. U.S., a unanimous 1935 decision that found that President Franklin Roosevelt’s removal of FTC Commissioner William Humphrey, a New Deal critic, was unjustified (see 2503190057).

The Communications Act specifies that not more than three FCC commissioners may be of the same party. But that could open the door for Trump to appoint an independent, a libertarian or a supportive nominal Democrat, regulatory lawyers said.

Trump could also remove and then refuse to replace the FCC Democrats, leaving Chairman Brendan Carr, Commissioner Nathan Simington and Republican nominee Olivia Trusty, lawyers said. One wrinkle is that some expect Simington to seek an early exit from the FCC.

"If one reads Project 2025 in its entirety, it is easy to draw the inference that no Democrats will be appointed to agencies,” said a former senior FCC official: “With Democratic senators years ago ending the filibuster rule for judicial appointments, perhaps all of this could now be accomplished on a strict majority vote in the Senate. But both parties should always be careful what they wish for."

Former Commissioner Michael Copps emphasized the Trump administration's unpredictability. “Other than knowing they’ll continue the destruction of government, it’s impossible to see what (usually illegal) process the administration will utilize to take America on this weird road back to an America that no longer exists,” Copps said in an email. “Fire people and destroy needed offices of government is the goal, and if one crazy tactic doesn’t work, invent another,” he added. “Putting Humpty Dumpty back together again, if we ever get the chance, will take years.”

Dismissal of the FCC Democrats isn’t inevitable, especially given the differences in quorum requirements between that agency and the FTC, said Kristian Stout, director-innovation policy at the International Center for Law & Economics. The FTC's quorum “adjusts based on sitting members, meaning the agency can operate even with vacancies, although it’s not clear if you can go fewer than two,” he said. “The FCC explicitly requires at least three commissioners present to function, making mass removals potentially disruptive to its operations.”

Humphrey’s Executor “explicitly involved presidential authority over FTC commissioners, so it's not surprising that the FTC would become a focal point for testing the limits of executive removal powers,” Stout added. Cooperation on commissions “has been increasingly fragile for some time,” he said: “I am more optimistic about where the FCC is going, particularly given that many of the issues it deals with are very technocratic, and Carr has a history of finding ways to work with Democratic commissioners.”

“We haven’t seen anything like this episode since the 1930s,” wrote Matt Stoller, research director at the American Economic Liberties Project, in his Substack newsletter Wednesday. “It sent shock waves and puzzlement around the narrow world of antitrust enforcement and administrative law.” He said the firings could be focused more specifically on the FTC, noting that the dismissal letter was reportedly sent to the FTC Democrats by Trent Morse, deputy director of the White House Presidential Personnel Office. “There are many factions in Trump-world," Stoller said. Morse is a former lobbyist at Ballard Partners, which represents Amazon on antitrust matters, he noted. The effects of the FTC firings “could be significant on enforcement of the law against big businesses like Amazon or Meta, but could be much broader on government agencies in general, even leading to the loss of independence of the Federal Reserve as Trump consolidates power.”

TechFreedom Senior Counsel Jim Dunstan emailed that his “guess (and only a guess) is that the administration will wait until the court challenge to the FTC firings gets at least through the appellate level before turning its sights on the FCC.” Could Trump fire Gomez to follow what he did with the FTC? “Possibly. But to what end? That would leave the FCC without a quorum,” he noted.

“The gloves are off” on nominations to independent agencies following the fight over Gigi Sohn’s failed nomination to the FCC (see 2303070052), Dunstan said. If Trump refuses to appoint Democrats, “woe be it on the Republicans the next time Democrats take office, and blow things up even worse,” he said: “We're in for a rocky ride for administrative law on a lot of fronts, with the likely result that we're either going to get hyper partisan nominations as each side tries to get as much as they can, or totally bland nominations to avoid controversy. Neither is optimal.”

Asked about the FTC firings, Simington also noted that the Trump administration had said it wanted to test the Humphrey’s Executor decision and is seemingly following through. In an interview after speaking at a Media Institute event Wednesday (see 2503200050), he told us he hadn’t expected the FTC dismissals. Simington said similar dismissals at the FCC might not be practical because of quorum issues.

Several communications industry lobbyists told us they expect Senate Commerce Committee Democrats will use the firings as a reason to amplify their focus on the FCC’s independent agency status in a forthcoming panel confirmation hearing for Trusty (see 2503070065). Senate Commerce Democrats peppered GOP FTC nominee Mark Meador with similar questions about his appetite for moving against potentially illegal Trump administration directives during a February confirmation hearing. Panel ranking member Maria Cantwell of Washington and Communications Subcommittee ranking member Ben Ray Lujan of New Mexico were among 28 Senate Democratic caucus members who jointly urged Trump on Wednesday night to “rescind” the FTC commissioners’ dismissals.