Yesterday evening the United States District Court for the District of Columbia reinstated FTC Commissioner Rebecca Kelly Slaughter to her seat on the Commission holding that the Supreme Court  case Humphrey's Executor (a 1935 Supreme Court decision unanimously confirming that FTC Commissioners cannot be fired without cause as listed in the FTC Act) remains the law of the land stating, "The Supreme Court has made clear that “‘[i]f [one of its] precedent[s]...has  direct application in a case,’...a lower court ‘should follow the case which directly controls, leaving to [the Supreme] Court the prerogative of overruling its own decisions.”

I wrote about this situation previously here when the firings initially took place in March of this year.

Procedurally the Supreme Court had effectively sent the death blow to the Humphrey's Executor decision in two cases regarding President Trump's firing of members of the NLRB and MSPB,  but there has yet to be a substantive review of these firings.

While Commissioner Slaughter has been reinstated via court order, we know that the Trump administration will not freely oblige. It's important to note that FTC Chair Andrew Ferguson acknowledged President Trump's capabilities to fire commissioners without cause when this action was initially taken. It will be curious how the FTC receives a reinstated Slaughter, or if they do, as Slaughter has already posted a picture of herself in front of FTC headquarters this morning advocating for a revised look at the click-to-cancel rule that the 8th Circuit recently threw out.

It is my opinion that the FTC's functionality has drastically changed over the last 90 years and that Humphrey's Executor should be overturned, but I do support a district court's restraint. The decision to overrule substantively is left with the Supreme Court, not a district court.

Commissioner Slaughter rejoining the FTC would bring the Commission to four commissioners: 3 Republicans (Chair Ferguson, Melissa Holyoak, and Mark Meador) and 1 Democrat (Slaughter). It will be interesting to see what's next because Holyoak is rumored to possibly be making a return to her homestate of Utah to be the United States Attorney there.

*It must be noted that although former Commissioner Alvaro Bedoya was initially a part of this suit since he was fired alongside Slaughter, his case was dismissed in this same district court order as Bedoya resigned his position last month. Accordingly, Bedoya lost his standing to sue.