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66. The FTC Act restricts the President’s ability to remove Commissioners by granting
them fixed terms and providing that they can be removed only for “inefficiency, neglect of duty,
or malfeasance in office.” 15 U.S.C. § 41. It is therefore unconstitutional.
67. Although the Supreme Court upheld the FTC Act’s removal restriction in
Humphrey’s Executor, 295 U.S. at 626, that decision depended on the Court “view[ing] the FTC
(as it existed in 1935) as exercising ‘no part of the executive power,’” Seila Law, 140 S. Ct. at
2198 (quoting Humphrey’s Ex’r, 295 U.S. at 628). The FTC exercised at most an “‘executive
function,’” the Court said, and even then “only in the discharge of its ‘quasi-legislative or quasi-
judicial powers.’” Id. (quoting Humphrey’s Ex’r, 295 U.S. at 628).
68. The “conclusion that the FTC did not exercise executive power has not withstood
the test of time.” Seila Law, 140 S. Ct. at 2198 n.2. The FTC now exercises “executive power in
the constitutional sense.” Humphrey’s Ex’r, 295 U.S. at 628; see also Seila Law, 140 S. Ct. at
2198. The FTC Act’s removal protection for Commissioners is therefore a violation of the Vesting
Clause of Article II. See U.S. Const. art. II, § 1, cl. 1.
1
COUNT FOUR
DECLARATORY JUDGMENT ACT, 28 U.S.C. § 2201
69. Ryan incorporates by reference the allegations of the preceding paragraphs.
1
Ryan recognizes that the Fifth Circuit recently held that “although the FTC’s powers may have changed
since Humphrey’s Executor was decided, the question of whether the FTC’s authority has changed so
fundamentally as to render Humphrey’s Executor no longer binding is for the Supreme Court . . . to answer.”
Illumina, Inc. v. Fed. Trade Comm’n, 88 F.4th 1036, 1047 (5th Cir. 2023); see also Consumers’ Research
v. Consumer Product Safety Comm’n, 91 F.4th 342, 353–54, 356 (5th Cir. 2024) (holding that the Consumer
Product Safety Commission’s “exercise[] [of] substantial executive power” does not “remove[]” it “from
the Humphrey’s exception,” and instead, that “[p]rincipal officers may retain for-cause protection when
they act as part of an expert board”). Ryan respectfully preserves this argument for further review, in light
of Judge Jones’s contrary opinion in Consumers’ Research that “for-cause removal protection violates the
constitutional separation-of-powers” whenever the agency “exercise[s] executive power,” 91 F.4th at 358
(Jones, J., dissenting), and in light of the Consumers’ Research majority’s observation that “[t]he logic of
Humphrey’s may have been overtaken,” id. at 346 (maj. op.).
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