DOJ Moves to End Protections for Three Regulatory Agencies

The U.S. Department of Justice (DOJ) will no longer support the independent status of three major regulatory agencies: the National Labor Relations Board (NLRB), the U.S. Federal Trade Commission (FTC), and the Consumer Product Safety Commission (CPSC). According to Reuters, a letter from Acting Solicitor General Sarah Harris to Senator Richard Durbin, a Democratic member of the Senate Judiciary Committee, outlined this determination. The decision could significantly alter the federal oversight landscape.

Per Reuters, the DOJ’s stance challenges a precedent set by the U.S. Supreme Court nearly 90 years ago. This precedent grants certain independent agency commissioners job security, allowing them to be removed only for cause rather than at the president’s discretion. However, the DOJ now intends to ask the Supreme Court to overturn that ruling as it applies to regulators who exercise “substantial executive power,” according to Harris.

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“I am writing to advise you that the Department of Justice has determined that certain for-cause removal provisions that apply to members of multi-member regulatory commissions are unconstitutional and the Department will no longer defend their constitutionality,” Harris stated in the letter, as cited by Reuters.

Federal law currently limits the removal of NLRB board members to cases involving “neglect of duty or malfeasance in office,” while FTC and CPSC commissioners enjoy similar protections. The DOJ’s decision aligns with ongoing legal challenges from major corporations, including Amazon and SpaceX, which have argued that the president should have authority to fire NLRB members at will. Additionally, companies sued by the FTC—such as Meta Platforms, Walmart, and Express Scripts, a subsidiary of Cigna—have filed lawsuits contesting the agency’s authority.

According to Reuters, the controversy over presidential power over regulatory bodies has been brewing for some time. Notably, former President Donald Trump dismissed a member of the NLRB and the Merit Systems Protection Board, which handles federal employee disputes, within weeks of taking office. Both individuals later sued over their removals.

Source: Reuters