Firing FCC Democrats Possible, But Not a Certainty

Among the most high-profile dismissals so far, Trump acted two weeks ago to fire Ellen Weintraub, a Democrat who chairs the bipartisan Federal Election Commission. He also fired National Labor Relations Board member Gwynne Wilcox, leaving it with two members, short of the three-member quorum needed to issue final rulings or reverse decisions from President Joe Biden's term.

Weintraub is fighting her dismissal. "There’s a legal way to replace FEC commissioners -- this isn’t it," she wrote on X earlier this month after receiving a letter from Trump. "I’ve been lucky to serve the American people & stir up some good trouble along the way. That’s not changing anytime soon."

Senate Communications Subcommittee ranking member Ben Ray Lujan, D-N.M., told us last week that the Trump administration's actions undermining independent agencies were “already happening” at the FCC, even before the president issued his most recent orders. “It appears that every time that a news station says something that the administration disagrees with, [Carr] is responding to it,” Lujan said. “I'm guessing [Trump is] calling him and asking what he's doing about it.”

The Communications Act states only that “the maximum number of commissioners who may be members of the same political party shall be a number equal to the least number of commissioners which constitutes a majority of the full membership of the Commission.” The act doesn't address whether they can be nominally independents.

The administration’s executive order on controlling independent agencies' actions works hand in hand with DOJ’s recent call for the U.S. Supreme Court to overturn the precedent protecting agency leaders from removal by the president, TechFreedom President Berin Szoka said. That precedent, set in Humphrey’s Executor v. U.S., is virtually certain to be overturned, he said. “I don't know a single administrative lawyer who actually expects the Supreme Court to uphold removal protections for multimember agencies like the FCC and the FTC.”

That’s an issue because “Congress has been delegating vast amounts of authority to these agencies for years on the assumption that these commissioners would act independently and would be protected from political meddling,” Szoka said. The breakdown of those protections could have implications many aren’t considering, he added. For example, the agreements between the U.S. and Europe on digital privacy and personal data were premised on the idea that the U.S. agencies implementing data protection were independent, but “that entire agreement is now going to fail.”

Free State Foundation President Randolph May warned in a recent blog post that firings at the FCC may be inevitable (see 2502140047). “I don't know whether anyone's knees are knocking at FCC headquarters, but the handwriting may be on the wall.” He noted a recent letter to Sen. Dick Durbin, D-Ill., from acting Solicitor General Sarah Harris, which said DOJ has determined “that certain for-cause removal restrictions that apply to members of multimember regulatory commissions are unconstitutional and that the Department will no longer defend their constitutionality."

Dismissals are “entirely possible,” said a former senior FCC official. Trump “has to test Humphrey’s Executor somehow.”

Mark Fowler, who served as FCC chair under Ronald Reagan, said it would be within Trump’s power to remove any of the commissioners. The Communications Act and other statutes that created agencies like the FCC are in conflict with Article II of the U.S. Constitution, he said.

Article II “basically puts all of those powers under the President,” Fowler said. Bringing the agencies “under unitary Presidential control” has “some really good advantages to it.” One of Trump’s first executive orders barred agencies and federal officials from spending taxpayer funds on abridging Americans’ free speech, he said. “In the case of the FCC, they can no longer bully and threaten people with First Amendment violations and intimidation.”

Questions Remain

Other FCC watchers said they are less certain that Trump will dismiss the agency's Democrats.

If the Senate moves quickly to approve the nomination of Olivia Trusty as the third Republican commissioner, Trump has little incentive to fire the Democrats, lawyers said. “Sure, [Trump] could do it for the hell of it, but why [anger] the African Americans or Hispanics, two groups he has been courting?” said a lawyer opposed to dismissals. Starks is Black, and Gomez is Hispanic.

“It would not be out of character” for Trump, “but so far, the FCC seems likely to have a majority for [his] preferred agenda such that it would be unnecessary to fire people to get what he wants,” said Joe Kane, director-broadband and spectrum policy at the Information Technology and Innovation Foundation. Other agencies “seem to be more in his sights for testing the limits of independent agencies, and I'd expect those to be where the fight plays out before he settles into whatever that new normal means for the FCC.”

Public Knowledge Senior Vice President Harold Feld, wrote in an email, “Carr doesn't need to ask Trump to fire either of the Democrats.” The chairman will soon have a Republican majority, “and much of what is on his agenda is fairly technical,” Feld said. “When he inevitably gets to more controversial items, such as eliminating the remaining media ownership rules, we may see some sparks fly.”

Kristian Stout, director-innovation policy at the International Center for Law & Economics, said his initial reaction was that FCC dismissals are unlikely, but “I will also reserve space for being suddenly surprised.”

“It is interesting that despite the enthusiasm of agency leaders, Trump is still putting his thumb on those agencies,” said Cheryl Leanza of the United Church of Christ Media Justice Office. “It seems he doesn’t even trust his loyal appointees.”

May, in a Friday email, wrote, “I am not aware of any indications that President Trump has any plans to remove the [Democratic] members of the commission.” He continued, “But it’s certainly clear that he intends to test, as a matter of principle, whether Humphrey’s Executor is still good law -- that is, whether commissioners of the so-called independent agencies like the FCC can be removed without cause.”

May welcomes the “efforts of the president to clarify” the extent of his constitutional authority as chief executive and “to exert more control over certain functions of the FCC and other multi-member agencies.” The outcome of the cases challenging the limits on his removal power could “prompt a useful evaluation of the commission’s structure, the fairness and due process of its regulatory and enforcement procedures, and its accountability to the elected branches for its decisions.”

Another Order

Building on the Monday executive order requiring agencies to submit proposed regulations to the White House for approval, Trump also released an order Wednesday requiring that agencies review their regulations and rescind those that meet a broad swath of possibly subjective criteria. It seeks to eliminate rules that “impose significant costs upon private parties that are not outweighed by public benefits,” that are “based on anything other than the best reading of the underlying statutory authority,” or that “harm the national interest by significantly and unjustifiably impeding technological innovation,” among others.

The order also instructs agencies to deprioritize enforcement actions that aren’t based on the best reading of the statute or that go beyond “the powers vested in the Federal Government by the Constitution.” It gives agency heads 60 days to categorize their regulations in consultation with the Department of Government Efficiency, OMB and attorney general. After that, agencies must consult with the Office of Information and Regulatory Affairs (OIRA) on rescinding or modifying them.

In a blog post Friday, law firm Wilmer Hale said the order “presents opportunities for regulated clients to help monitor and shape the rapidly changing regulatory environment.” Companies should “take inventory of existing, unnecessarily burdensome regulations and consider preparing white papers on specific regulations to submit to agencies, OIRA, or DOGE.” The order's “mandate to de-prioritize enforcement proceedings that are inconsistent with the Administration’s policies -- and even to terminate existing enforcement proceedings on a case-by-case basis -- provides a similar opportunity for clients currently engaged in enforcement proceedings.”