Amicus Curiae Brief — Donald J. Trump, President of the United States, et al., Petitioners v. Rebecca Kelly Slaughter

Supreme Court briefNov 13, 2025

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No. 25-332

In the Supreme Court of the United States

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,

ET AL., PETITIONERS

REBECCA KELLY SLAUGHTER, ET AL., RESPONDENTS

On Writ of Certiorari before Judgment

to the United States Court of Appeals

for the District of Columbia Circuit

BRIEF OF AMICI CURIAE 40 NATIONAL,

STATE, AND LOCAL CONSUMER, PRIVACY

AND OPEN MARKETS GROUPS IN

SUPPORT OF RESPONDENTS

WILLIAM H. FEDULLO

ARIANA B. KIENER

JULIA R. MCGRATH

JESSICA SEIGEL

BERGER MONTAGUE PC

F. PAUL BLAND

Counsel of Record

BERGER MONTAGUE PC

1001 G Street, NW

SUITE 400 East

Washington, DC 20001

(202) 559-9740

pbland@bm.net

SETH E. MERMIN

DAVID S. NAHMIAS

CENTER FOR CONSUMER

LAW & ECONOMIC JUSTICE

UC BERKELEY SCHOOL OF LAW

Counsel for Amici Curiae

November 13, 2025

TABLE OF CONTENTS

TABLE OF CONTENTS ............................................. i

TABLE OF AUTHORITIES ...................................... iii

INTERESTS OF AMICI CURIAE ............................. 1

INTRODUCTION AND SUMMARY OF

ARGUMENT .................................................... 1

ARGUMENT ............................................................... 4

Agency Independence is an

Indispensable Mechanism to

Preserve Expertise and Further

the Long-Term Public Good. ................. 4

II.

The FTC’s Independence Enables

It to Protect Consumers in the

Face of Political and Industry

Pressure. ................................................ 9

III.

Political Independence

Makes the FTC a Credible

and Bipartisan Regulator. ....... 10

Independence Enables the

FTC To Confront Powerful

Industries.................................. 13

Other Agencies Safeguarding the

Public Depend On Expertise

Afforded By Independence From

Presidential Interference. ................... 17

Agencies Responsible for

Ensuring Stability in

Financial Markets Must

Operate Free from Political

Coercion. ................................... 17

IV.

Agencies Protecting Public

Safety Must Operate Free

from Undue Political

Pressure. ................................... 20

The Dangers of Industry Capture

Underscore the Need for

Independent Commissions.................. 24

The FAA’s Pattern of

Appeasing the Airline

Industry Illustrates the

Risks of Capture ....................... 26

The FSIS’s Ongoing

Deference to the

Agricultural Industry Also

Evidences Agency Capture ...... 29

Invalidating Removal Protections

for the FTC and Other Agencies

Will Put Americans at Risk. ............... 33

A Politicized FTC Will

Retreat from Protecting

Consumers. ............................... 33

Politicizing the CPSC

Would Jeopardize Public

Safety. ....................................... 35

CONCLUSION ......................................................... 38

APPENDIX ............................................................... 1a

iii

TABLE OF AUTHORITIES

CASES

PAGE(S)

Calcutt v. Fed. Deposit Ins. Corp.,

37 F.4th 293 (6th Cir. 2022) ................................... 18

FEC v. NRA Pol. Victory Fund,

6 F.3d 821 (D.C. Cir. 1993)..................................... 18

Free Enter. Fund v. Pub. Co. Acct. Oversight Bd.,

561 U.S. 477 (2010) ............................................ 5, 18

FTC v. R.F. Keppel & Bro., Inc.

291 U.S. 304 (1934) .................................................. 6

Humphrey’s Executor,

295 U.S. 602 (1935) ........................................ 1, 5, 18

PHH Corp. v. CFPB,

839 F.3d 1 (D.C. Cir. 2016)....................................... 8

PHH Corp. v. CFPB,

881 F.3d 75 (D.C. Cir. 2016)..................................... 7

S.E.C. v. Blinder, Robinson & Co.,

855 F.2d 677 (10th Cir. 1988) ................................ 18

S.S. ex rel. Stern v. Peloton Interactive, Inc.,

566 F. Supp. 3d 1019 (S.D. Cal. 2021) ................... 21

Seila Law LLC v. CFPB,

591 U.S. 197 (2020) .................................................. 7

Trump v. Boyle,

606 U.S. ---, 145 S. Ct. 2653 (2025) ........................ 35

STATUTES

7 U.S.C. § 6981(a) ...................................................... 29

12 U.S.C. § 1812(a)-(c) ............................................... 18

12 U.S.C. § 241-42 ..................................................... 18

15 U.S.C. § 41 .............................................................. 2

15 U.S.C. § 78d ...................................................... 2, 18

15 U.S.C. § 78dd-1 ..................................................... 19

15 U.S.C. § 1331 (1965) ............................................. 14

15 U.S.C. § 2053 .......................................................... 2

15 U.S.C. § 2053(a) .................................................... 20

49 U.S.C. § 106(a) ...................................................... 26

49 U.S.C. § 1111 .......................................................... 2

49 U.S.C. § 1111(b)–(d).............................................. 22

51 U.S.C. § 50903(b)-(c) ............................................. 26

Pub. L. 105–277, 112 Stat. 2681–728 ....................... 15

Pub. L. No. 95-213, 91 Stat. 1494 ............................. 19

REGULATIONS

16 C.F.R. § 1223 (2025) ............................................. 21

16 C.F.R. § 1303 (1978) ....................................... 20, 35

16 C.F.R. § 1112 (2022) ............................................. 21

16 C.F.R. § 1261 (2022) ............................................. 21

Preservation of Consumers’ Claims and Defenses,

40 Fed. Reg. 53,506 (Nov. 18, 1975)....................... 14

OTHER AUTHORITIES

A Retrospective of Consumer Protection Initiatives,

72 Antitrust L.J. 969 (2005) ................................... 15

Administrative Dissents,

59 Wm. & Mary L. Rev. 541 (2017) ......................... 8

Agency Capture: The USDA’s Struggle to Pass Food

Safety Regulations,

7 Kan. J.L. & Pub. Pol’y 142 (1998) ....................... 30

Staff of H. Comm. on Transp. and Infrastructure,

116th Cong., Final Committee Rpt. on Boeing 737

Max 5–6,

Comm. Print 2020............................................. 28, 29

Deconstructing Independent Agencies (and Executive

Agencies),

98 Cornell L. Rev. 769 (2013) ................................. 17

Grounded: How the 737 Max Crashes Highlight

Issues with FAA Delegation and A Potential

Remedy in the Federal Tort Claims Act,

85 J. Air L. & Com. 703 (2020)......................... 26, 27

Henry H. Rossbacher & Tracy W. Young, The Foreign

Corrupt Practices Act Within the American

Response to Domestic Corruption,

15 Penn. St. Int’l L. Rev. 509, 510–511 (1997) ..... 19

Legitimizing Agencies,

91 U. Chi. L. Rev. 919 (2024) ............................... 6, 7

Modernization of Swine Slaughter Inspection,

84 Fed. Reg. 52300 (Oct. 1, 2019) .................... 31, 32

Presidential Coordination of the Independent

Regulatory Process,

8 Admin L.J. Am. U. 461 (1994) ............................ 20

Presidential Management of the Administrative State:

The Not-So-Unitary Executive,

51 Duke L.J. 963 (2001) ................................... 13, 14

Pub. L. No. 75-447, § 3, 52 Stat. 111 (1938) ............... 3

Pub. L. No. 89-92 ....................................................... 14

Pub. L. No. 91-222 ..................................................... 14

Request for Information on Reducing Regulatory

Burdens,

90 Fed. Reg. 24791 (June 12, 2025) ....................... 36

S. Rep. No. 63-597 ................................................... 6, 7

Safety First: The Consumer Product Safety

Improvement Act of 2008,

21 Loy. Consumer L. Rev. 372 (2009) .................... 36

Soft Adjudication,

69 Admin. L. Rev. 529 (2017) ................................. 22

The Federal Trade Commission and Consumer

Protection: Regulatory Change and Administrative

Pragmatism,

72 Antitrust L.J. 911 (2005) ................................... 13

The Fight over Frankenmeat: The FDA As the Proper

Agency to Regulate Cell-Based “Clean Meat”,

86 Brook. L. Rev. 593 (2021) ............................ 31, 32

The Folklore of Unfairness,

96 N.Y.U. L. Rev. 431 (2021) .................................. 11

vii

The FTC’s Consumer Protection Program During the

Miller Years: Lessons for Administrative Agency

Structure and Operation,

46 Cath. U. L. Rev. 371 (1997) ............................... 11

The Future of Agency Independence,

63 Vand. L. Rev. 599 (2010) ..................................... 6

The Hand That Truly Rocks the Cradle: A Reprise of

Infant Crib Safety, Lawsuits and Regulation from

2007-2012,

25 Loy. Consumer L. Rev. 229 (2013) .................... 36

The Pipeline Industry Meets Grief Unimaginable:

Congress Reacts with the Pipeline Safety

Improvement Act of 2002,

44 Nat. Resources J. 243 (2004) ....................... 22, 23

The Story of the Corrupt Practices Act,

73 Ohio St. L.J. 929 (2012) ..................................... 19

“Is the Meat Here Safe?” How Strict Liability for

Retailers Can Lead to Safer Meat,

92 B.U. L. Rev. 1081 (2012) ................................... 30

INTERESTS OF AMICI CURIAE 1

Amici curiae are a coalition of 40 national and

state organizations from 10 states and the District of

Columbia that advocate for consumer protections,

data privacy, and competitive markets. Amici share an

interest in preserving the constitutionality of for-cause

removal protections among independent commissions

like the Federal Trade Commission and others. These

protections are wholly constitutional effectuations of

Congress’s authority to design administrative

agencies that are grounded in technical expertise,

consideration and articulation of alternative

viewpoints, and a commitment to the long-term public

good. Should the Court nullify for-cause removal

protections, amici fear that politicization and agency

capture by regulated industries will come to pass and

undermine Congress’s intent when creating those

agencies. Accordingly, amici curiae urge the Court to

reaffirm its conclusion in Humphrey’s Executor, 295

U.S. 602 (1935) in order to safeguard the independence

of these particular agencies. All amici are listed in the

Appendix.

INTRODUCTION AND SUMMARY

OF ARGUMENT

Faced with a widespread public concern about

the growing power of monopolies and large corporate

consolidation, Congress established the Federal Trade

1 No counsel for a party authored this brief in whole or in part,

and no person other than amici curiae, their members, or their

counsel made a monetary contribution to the preparation or the

submission of this brief.

Commission (“FTC” or “Commission”) in 1914 as an

independent commission to enforce laws that promote

open and competitive markets. Congress made a

crucial choice to shield commissioners from at-will

removal by the President, see 15 U.S.C. § 41, to ensure

lasting administrative expertise, stability, and

deliberation and minimize influence from short-term

political coercion and industry domination. The choice

to enact for-cause removal protections was, and

continues to be, fully compatible with the separation

of powers and Article II.

The evidence proves the wisdom of Congress’s

decision—both for the FTC as well as for the panoply

of independent commissions like it with for-cause

removal protections. Throughout U.S. history,

independent regulatory commissions with bipartisan

membership and for-cause removal protections have

safeguarded the public interest by grounding decisions

in expertise and national needs rather than politics.

See e.g., 15 U.S.C. § 41 (mandating the FTC’s

composition of five Commissioners, restricting their

makeup to at most three members of one political

party, and allowing for-cause removal); 15 U.S.C. §

2053 (establishing the Consumer Product Safety

Commission and mandating the same); 15 U.S.C. §

78d (establishing the Securities and Exchange

Commission and mandating the same); 49 U.S.C. §

1111 (establishing the National Transportation Safety

Board and mandating the same). Staggered terms and

multipartisan leadership foster continuity, legitimacy,

and deliberation. Even dissenting opinions within

these commissions have often spurred important

policy innovations—both within agencies and in

Congress.

The FTC exemplifies the value of and need for

independence. Across more than a century—and since

Congress established its consumer protection mandate

in 1938 2 —the Commission has advanced consumer

protection and market fairness—whether by

confronting deceptive tobacco advertising, policing

abusive financial practices, or protecting children’s

online privacy. In each case, the FTC’s credibility and

success depended on its insulation from political

interference.

The benefits of independence extend well beyond

the FTC. The Securities and Exchange Commission

(“SEC”) and Consumer Product Safety Commission

(“CPSC”) have safeguarded investors and consumers

through stable, expert enforcement insulated from

political tides. The National Transportation Safety

Board (“NTSB”) has investigated transportation

disasters and spurred safety reforms where executivecontrolled agencies failed to act.

By contrast, agencies lacking independence—such

as the Federal Aviation Administration (“FAA”), a

constituent agency of the U.S. Department of

Transportation (“DOT”), and the Food Safety and

2 Federal Trade Commission Act, Pub. L. No. 75-447, § 3, 52

Stat. 111 (1938).

Inspection Service (“FSIS”), a constituent agency of

the U.S. Department of Agriculture (“USDA”)—have

too often succumbed to industry domination, leading

to regulatory failures that cost lives and erode public

trust.

The historical record is clear and confirms

Congress’s deliberate choice: independent agencies

outperform their politicized counterparts that are

structurally vulnerable to presidential meddling in

protecting consumers, ensuring market integrity, and

preserving public confidence. For-cause removal

protections are thus essential to sustaining expert,

evenhanded governance in the public interest. A

conclusion by this Court that Congress has no power

to insulate certain administrative agencies from atwill removal will undermine these principles and

expose the American public and markets to a heavily

politicized and industry-influenced administration of

laws—and could pose significant risks to Americans’

safety and stability.

The judgment of the District Court should be

affirmed.

ARGUMENT

Agency

Independence

Indispensable Mechanism to Preserve

Expertise and Further the Long-Term

Public Good.

The independence of certain agencies like the FTC

from presidential control helps promote legitimate

policy decisions, protect leadership from presidential

or industry pressure, and moderate administrative

decisions. The enactment of removal protections in

order to encourage long-term stability does not offend

the separation of powers. To the contrary, it is well

within Congress’s constitutional prerogative to enact

removal protections for independent agencies that

limit the President’s ability to remove commissioners

except for cause—i.e., “inefficiency, neglect of duty, or

malfeasance in office.” Humphrey’s, 295 U.S. at 620.

To start, structural protections at independent

agencies help ensure that regulatory decisions, even

unpopular ones, are made by experts, not pure

partisans. See Free Enter. Fund v. Pub. Co. Acct.

Oversight Bd., 561 U.S. 477, 531 (2010) (Breyer, J.,

dissenting) (noting that this Court has long

“recognize[d] the constitutional legitimacy of a

justification that rests agency independence upon the

need for technical expertise”) (citing Humphrey’s Ex.,

295 U.S. at 624–626); Humphrey’s, 295 U.S. at 624

(confirming that the FTC “must . . . act with entire

impartiality”). For-cause removal protections can

promote technical expertise; insulate against undue

external influence from politics, the public, or

industry; and air minority views that stress-test policy

decisions and enable public transparency and

accountability for those actions. Free Enter. Fund, 561

U.S. at 522 (Breyer, J., dissenting) (explaining that

protecting “a technical decisionmaker from the fear of

removal without cause,” “help[s] create legitimacy

with respect to that official’s regulatory actions” and

insulates their “technical decisions from nontechnical

political pressure”). Indeed, Congress explicitly

designed the FTC as “a body specially competent. . . by

reason of information, experience, and careful study of

the business and economic conditions of the industry

affected.” 3

These safeguards also preserve public confidence.

Weakening these protections would imperil the

stability, impartiality, and credibility of the federal

regulatory system to the detriment of Americans and

democratic governance. 4 With trust and confidence in

government institutions already at an all-time low, 5

preserving the independence of agencies and

commissions from political control or industry

influence is thus crucial to restoring public

3 FTC v. R.F. Keppel & Bro., Inc., 291 U.S. 304, 314 (1934)

(quoting S. Rep. No. 63-597, at 9, 11 (1914)) (“it was organized in

such a manner, with respect to the length and expiration of the

terms of office of its members, as would ‘give to them an

opportunity to acquire the expertness in dealing with these

special questions concerning industry that comes from

experience[.]’”) (quoting S. Rep. No. 63-597, at 9, 11 (1914)).

4 Lisa Schultz Bressman & Robert B. Thompson, The Future of

Agency Independence, 63 Vand. L. Rev. 599, 613 (2010) (“The

short-term interests of any presidential administration have the

potential to distort regulatory policies at the expense of longrange interests. In addition, the shifting of administrations every

four or eight years can threaten the stability of regulatory

policy.”).

5 Brian D. Feinstein, Legitimizing Agencies, 91 U. Chi. L. Rev.

919, 920, 982 (2024) (observing a “near-perpetual crisis of

legitimacy”).

confidence. 6

Removal protections also insulate commissioners

from political or public coercion. In creating the FTC,

Congress explicitly rejected the notion of giving the

President the power to fire the commissioners at will

precisely because lawmakers feared that the agency

would make decisions “purely political in character”—

e.g., avoid politically unpopular but nationally

beneficial agency actions that put the broader public’s

interests ahead of the president’s political fortunes. 7

By contrast, as an independent agency, Congress

believed the FTC’s “decisions, coming from a board of

several persons, will be more readily accepted as

impartial and well considered.” 8

Finally, independent commissions promote varied

viewpoints and deliberative moderation that agency

leaders would otherwise silence to avoid retaliatory

removals by the president. Because of staggered terms

and removal protections, commissioners are typically

drawn from both major political parties, ensuring

representation from divergent backgrounds and

6 See id. at 921, 925–933, 982.

7 S.

Rep. No. 63-597, at 6 (1914) (quoting remarks of Sen.

Newlands).

8 PHH Corp. v. CFPB, 881 F.3d 75, 151 (D.C. Cir. 2016)

(Henderson, J., dissenting) (quoting S. Rep. No. 63-597, at 10–11

(1914)), abrogated by Seila Law LLC v. CFPB, 591 U.S. 197

(2020).

multiple administrations. 9 This structure fosters

heterogeneity and opportunities for minority

commissioners to issue informed dissents that can

moderate rulemaking and influence future agency or

judicial decision-making. 10 Through this process,

commissioners can find a deliberative balance of their

diverse beliefs not otherwise possible in a more

punitive environment laden with threats of

presidential reprisal. 11 Then-Judge Kavanaugh

observed that the multi-member structure of

independent commissions “reduces the risk of

arbitrary decision-making and abuse of power, and

thereby helps protect individual liberty.” PHH Corp.,

839 F.3d 1, 6 (D.C. CIR. 2016).

Bipartisan appointments with for-cause removal

protections not only improve decision quality by

forcing agency leaders to contend with competing

9 Sharon B. Jacobs, Administrative Dissents, 59 Wm. & Mary L.

Rev. 541, 556–57 (2017).

10 Russell W. Damtoft & Matthew E. Moloshok, I’m Not Dead

Yet! And Implications for the FTC If Humphrey’s Executor Were

to Be Buried for Good, Antitrust Source, Aug. 2025, at 1, 8 (“[T]he

bipartisan nature of the FTC has proved to have a moderating

effect, as the possibility of dissent makes controversial points

transparent, and indeed the threat of dissent can moderate any

extreme positions the majority may undertake.”).

11 Jacobs, supra n. 9, at 589 (Even when the majority opinion

does not respond to the views expressed in a dissent, those

opinions can still improve the quality of the agency’s final rule,

“either by qualifying the majority’s approach or by enhancing it.”).

views and well-reasoned criticisms; they also enhance

transparency and accountability. Conversely, political

interference in technical decision-making erodes

public trust. The more that the public believes a policy

is rooted in politics, not expertise or the public

interest, the less likely they are to trust investigations,

regulations, and recommendations issued by

agencies. 12

II.

The FTC’s Independence Enables It to

Protect Consumers in the Face of

Political and Industry Pressure.

The FTC’s insulation from political coercion has

long preserved its credibility as a source of expertise

and its ability to resist industry capture. Without

independence, the FTC risks transformation from a

respected body of policy experts who are appropriately

distanced from political and industry pressure to a

political cudgel. Congress created the FTC to replace

the Bureau of Corporations—a partisan entity lacking

enforcement power that was housed in the

12 See, e.g., Cary Funk et al., Trust and Mistrust in Americans’

Views of Scientific Experts, Pew Rsch. Ctr. (Aug. 2, 2019),

https://www.pewresearch.org/science/2019/08/02/trust-andmistrust-in-americans-views-of-scientific-experts;

Jay

Hmielowski, et al., An Attack on Science? Media Use, Trust in

Scientists, and Perceptions of Global Warming, 23 Pub.

Understanding Science 866 (2014); Danielle M. McLaughlin,

Jack Mewhirter & Rebecca Sanders, The Belief That Politics

Drive Scientific Research & Its Impact on COVID-19 Risk

Assessment, PLOS One, Apr. 21, 2021.

Department of Commerce and Labor. 13 Fearing the

politicization of a powerful regulator, Congress

deliberately designed the FTC to be independent. 14

Independence enables the FTC to provide Congress

and the President with honest, expert advice, even

when that advice runs counter to prevailing political

agendas. Across decades and industries, the FTC’s

independence has protected consumers, informed

legislation, and sustained public trust.

A. Political Independence Makes the

FTC a Credible and Bipartisan

Regulator.

Protected

from

at-will

removal,

FTC

commissioners have exercised independent judgment

even when doing so conflicted with presidential

directives. For example, Republican Commissioner

Patricia

Bailey

(1979-1988)

resisted

fellow

Republican-appointed Chair James Miller’s efforts to

shutter the FTC regional offices, 15 which handled

“almost all of the cases involving consumer redress

13 Chris Hoofnagle, Federal Trade Commission: Privacy Law

and Policy 6, 9 (2016).

14 Id.

15 Tom Dahdouh, The Firing of FTC Commissioners: An

Existential Threat to the FTC’s Ability to Protect the American

Public, California Lawyers Association: Antitrust and Consumer

Protection E-Briefs, News and Notes (April 2025),

https://calawyers.org/antitrust-and-consumer-protection/ebriefs-news-and-notes-april-2025/.

and the majority of investigations,” as part President

Reagan’s deregulatory initiative. 16 Commissioner

Bailey testified in Congress against these closures. 17

Because President Reagan could not fire her over this

disagreement, she was able to defend the regional

offices, and by extension, the FTC’s consumer

protection mission. 18

Similarly, Commissioner (later Chair) Phil Elman

(1961-1970) openly criticized fellow Democratic Chair

Paul Rand Dixon for being too friendly with big

business instead of pursuing reform-oriented policies

expanding the FTC’s power and responsiveness. 19 He

resisted direct pressure when President Lyndon B.

Johnson confronted Elman to tell him his behavior

was “bad for me, bad for you, bad for the

commission.” 20 Elman continued his public dissent

and later led some of the FTC’s signature initiatives,

16 Id.; Mark E. Budnitz, The FTC’s Consumer Protection

Program During the Miller Years: Lessons for Administrative

Agency Structure and Operation, 46 Cath. U. L. Rev. 371, 389

(1997).

17 Id. at 389.

18 Dahdouh, supra n. 15.

19 Id.; Luke Herrine, The Folklore of Unfairness, 96 N.Y.U. L.

Rev. 431, 480–81 (2021).

20 Dahdouh, supra n. 15 (quoting James M. Graham, In

Washington: Clout, Not Competence, N.Y. Times, May 23, 1976,

at F16).

including those around cigarettes, infra, § II.B., and

flammable baby blankets. 21

It is this tradition of independence that makes the

FTC’s advice and reporting credible across partisan

lines, especially with respect to powerful industries.

Last year, members of the Republican-led House

Committee on Oversight and Accountability relied

heavily on an FTC report during a hearing on the

impact of Pharmacy Benefits Managers on

prescription drug costs, despite the report having been

released during the preceding Democratic president’s

tenure—precisely due to the FTC leadership’s

insulation from presidential meddling. 22 A loss of

independence would threaten the bipartisan respect

for the expertise of the FTC.

21 Hoofnagle, supra n. 13, at 359 n.48.

22 Press Release, House Committee on Oversight and

Accountability, Hearing Wrap Up: Oversight Committee Exposes

How PBMs Undermine Patient Health and Increase Drug Costs

(July 23, 2024), https://oversight.house.gov/release/hearingwrap-up-oversight-committee-exposes-how-pbms-underminepatient-health-and-increase-drug-costs/ (citing Interim Staff

Report, FTC, Pharmacy Benefit Managers: The Powerful

Middlemen Inflating Drug Costs and Squeezing Main Street

Pharmacies

(2024),

https://www.ftc.gov/system/files/ftc_gov/pdf/pharmacy-benefitmanagers-staff-report.pdf).

B. Independence Enables the FTC To

Confront Powerful Industries.

The FTC’s independence has repeatedly allowed it

to enact policies to protect consumers despite

opposition from special interests like the tobacco

lobby, financial institutions, technology companies,

and other corporations that expend enormous

resources currying the president’s favor.

In the 1960s, the FTC acted against the powerful

tobacco industry when political leaders hesitated. In

January 1964, following the U.S. Surgeon General’s

groundbreaking report on the hazards of cigarette

smoking, the FTC moved swiftly to propose a rule

requiring warnings on cigarettes. 23 Despite opposition

from both Congress and the President (including a

request from the White House to drop the rule, likely

informed by President Johnson’s close friendship with

a powerful tobacco lobbyist), 24 the FTC adopted a rule

Sidney M. Milkis, The Federal Trade Commission and

Consumer Protection: Regulatory Change and Administrative

Pragmatism, 72 Antitrust L.J. 911, 916–17 (2005); Panel Entitled

“Kids, Calls and Cigarettes: Successful – and Not So Successful –

Consumer Protection Initiatives” at FTC 90th Anniversary

Symposium

91:5–92:3

(Sept.

22,

2004),

https://www.ftc.gov/sites/default/files/documents/public_events/f

tc-90th-anniversary-symposium/040922transcript002.pdf.

24 Milkis, supra n. 23, at 918 (explaining the FTC received

“discouraging signals from Congress and the Johnson White

House”); Robert V. Percival, Essay, Presidential Management of

the Administrative State: The Not-So-Unitary Executive, 51 Duke

L.J. 963, 1010 & n.263 (2001).

mandating that cigarette containers and advertising

warn that “cigarette smoking is dangerous to health

and may cause death from cancer and other

diseases.” 25 The FTC’s actions prompted Congress to

pass a weakened version of the FTC rule—as opposed

to doing nothing—in the 1965 Federal Cigarette

Labeling and Advertising Act (“FCLAA”), which

hamstrung the FTC’s efforts to enforce the rule on

advertisers. 26 Nevertheless, the FTC maintained

public pressure on the dangers of smoking by

submitting annual reports to Congress on cigarette

advertising and its harms, 27 which eventually led

Congress to enact a ban on airwave advertisements for

cigarettes 28—again, as opposed to taking no action.

In the 1970s, the FTC introduced the “Holder in

Due Course” Rule in the face of financial industry

opposition. 29 The Holder Rule requires that any

contract for the sale of debt from one lender preserve

the debtor’s claims and defenses against the original

25 Milkis, supra n. 23, at 918.

26 Pub. L. No. 89-92, § 4, 79 Stat. 282, 283 (1965) (requiring a

softer warning that “Cigarette Smoking May be Hazardous to

Your Health” and not extending the warning requirement to

advertisements), enacted at 15 U.S.C. § 1331 (1965).

27 Milkis, supra n. 23, at 918.

28 Public Health Cigarette Smoking Act of 1969, Pub. L. No. 91-

222, 84 Stat. 87.

29 Preservation of Consumers’ Claims and Defenses, 40 Fed.

Reg. 53,506 (Nov. 18, 1975).

creditor. 30 The FTC sought to end an abusive practice

whereby a creditor who had defrauded a consumer

could sell the consumer’s debt to a third party, against

whom the consumer could not raise their fraud claims

or defenses, leaving the harmed consumer without

recourse. 31 Financial institutions sought to halt or

weaken the Holder Rule, but nevertheless the

independent FTC adopted it. Today, the Holder Rule

continues to be a critical protection against abusive

lending practices. 32

Similarly, in the late 1990s, FTC experts identified

growing threats to children’s privacy and safety online

and prepared a comprehensive report to Congress. 33

That report led to Congress’s passage of the Children’s

Online Privacy Protection Act (COPPA), one of the few

federal laws that squarely address online privacy. 34

The FTC has since served as COPPA’s principal

enforcer, bringing actions against Big Tech over the

30 Id.

31 Jodie Z. Bernstein & David A. Zetoony, A Retrospective of

Consumer Protection Initiatives, 72 Antitrust L.J. 969, 970

(2005).

32 Id. at 970–71.

33 FTC, Privacy Online: A Report to Congress (1998).

34 Pub. L. 105–277, 112 Stat. 2681–728.

wrongful collection and monetization of children’s

data. 35

These actions spanning multiple administrations

demonstrate how independence sustains consistent,

evidence-based consumer protection across political

transitions,

precisely

because

self-interested

industries under regulation cannot reach into agency

decision-making through agency capture or a

politically motivated president. 36

35 See, e.g., Press Release, FTC, FTC Will Require Microsoft to

Pay $20 million over Charges it Illegally Collected Personal

Information from Children without Their Parents’ Consent (June

2023),

https://www.ftc.gov/news-events/news/pressreleases/2023/06/ftc-will-require-microsoft-pay-20-million-overcharges-it-illegally-collected-personal-information; Press Release,

FTC, FTC Proposes Blanket Prohibition Preventing Facebook

from

Monetizing

Youth

Data,

(May

2023),

https://www.ftc.gov/news-events/news/pressreleases/2023/05/ftc-proposes-blanket-prohibition-preventingfacebook-monetizing-youth-data; Press Release, FTC, Google and

YouTube Will Pay Record $170 Million for Alleged Violations of

Children’s

Privacy

Law,

(Sept.

2019),

https://www.ftc.gov/news-events/news/pressreleases/2019/09/google-youtube-will-pay-record-170-millionalleged-violations-childrens-privacy-law.

See, e.g., Press Release, FTC, FTC Proposes Blanket

Prohibition Preventing Facebook from Monetizing Youth Data

(May 3, 2023), https://www.ftc.gov/news-events/news/pressreleases/2023/05/ftc-proposes-blanket-prohibition-preventingfacebook-monetizing-youth-data (detailing timeline of FTC

actions).

III.

Other Agencies Safeguarding the

Public Depend on Expertise Afforded

by Independence from Presidential

Interference.

The FTC is not alone in relying on independence to

fulfill its statutory mission. Across the federal

government, independent agencies safeguard the

public using expert judgment free from undue political

interference. Their success—and the public’s trust in

them—depends on insulation from short-term political

control.

A. Agencies Responsible for Ensuring

Stability in Financial Markets Must

Operate

Free

from

Political

Coercion.

Independence is essential in the financial sector,

where agencies such as the Federal Reserve Board, the

Securities and Exchange Commission (“SEC”), and the

Federal Deposit Insurance Corporation are charged

with maintaining transparency, predictability, and

stability in the nation’s financial markets. 37 Congress

deliberately structured their leadership with

staggered terms, removal protections, and decisional

autonomy—not as formalities, but as safeguards to

37 Kirti Datla & Richard L. Revesz, Deconstructing Independent

Agencies (and Executive Agencies), 98 Cornell L. Rev. 769, 820,

823 (2013) (“One of the motivations behind for-cause removal

protection is stability.”).

ensure decisions are based on expertise and long-term

stability, rather than political ideology. 38

In the wake of the Watergate scandal, the SEC was

able to serve as a trusted, non-partisan expert in a

politically charged environment. Following public

revelations of illegal campaign contributions by major

corporations, the SEC investigated and uncovered

slush funds that hid domestic political donations to

Democrats and Republicans, as well as suspect foreign

donations many viewed as bribes. 39 The agency’s

38 See, e.g., Federal Reserve Act, 12 U.S.C. §§ 241-42; Securities

Exchange Act of 1934, 15 U.S.C. § 78d; Federal Deposit Insurance

Act, 12 U.S.C. § 1812(a)-(c). The Securities Exchange Act and

Federal Deposit Insurance Act lack the explicit removal language

found in the FTC and Fed statutes, but courts and the agencies

themselves have long recognized that their commissioners enjoy

the same protections. See, e.g., Free Enter. Fund, 561 U.S. at 487

(“The parties agree that the [SEC] Commissioners cannot

themselves be removed by the President except under the

Humphrey’s Executor standard of ‘inefficiency, neglect of duty, or

malfeasance in office.’”) (quoting 295 U.S. at 620); S.E.C. v.

Blinder, Robinson & Co., 855 F.2d 677, 682 (10th Cir. 1988)

(recognizing President’s authority to remove SEC commissioners

for good cause despite governing statute’s silence); FEC v. NRA

Pol. Victory Fund, 6 F.3d 821 (D.C. Cir. 1993) (same); Calcutt v.

Fed. Deposit Ins. Corp., 37 F.4th 293, 303 (6th Cir. 2022) (“[T]he

parties agree that [the FDIC’s internal directors] are not

removable at will.”).

39 Ciara Torres-Spelliscy, The SEC and Dark Political Money:

An Historical Argument for Requiring Disclosure 7–8 (June 18,

2013), (Stetson U. Coll. Law Research Paper, Paper No. 2013-16,

2013), https://ssrn.com/abstract=2282576 (explaining “corporate

political spending was not just bipartisan; it was also

findings spurred congressional hearings, widespread

public scrutiny, and ultimately unanimous passage of

the Foreign Corrupt Practices Act of 1977, which

criminalized bribery of foreign officials for the first

time. 40

The SEC’s independence lent credibility to its

findings. 41 As SEC Commissioner Philip Loomis

testified, “disclosure really is our business in this area.

Our concern by statute is with disclosure . . . whether

there should be a Federal statute making such

payments illegal or otherwise dealing with them,

seems to me a general question within the province of

international”); SEC, Report of the Securities and Exchange

Commission on Questionable and Illegal Corporate Payments and

Practices (1976), reprinted in Special Supplement, Sec. Reg. & L.

Rep.

(BNA)

No.

353,

(May

19,

1976), https://www.sechistorical.org/collection/papers/1970/1976

_0512_SECQuestionable.pdf.

40 Foreign Corrupt Practices Act, Pub. L. No. 95-213, 91 Stat.

1494 (codified as amended at 15 U.S.C. §§ 78dd-1 et seq.); Mike

Koehler, The Story of the Corrupt Practices Act, 73 Ohio St. L.J.

929, 950–51 (2012); Henry H. Rossbacher & Tracy W. Young, The

Foreign Corrupt Practices Act Within the American Response to

Domestic Corruption, 15 Penn. St. Int’l L. Rev. 509, 510–511

(1997).

41 Koehler, supra n. 40, at 961 (“The SEC played the most

prominent and trusted role during Congress’s multi-year

investigation. . . . the SEC wanted no part in policing the morality

of American business or in determining what is an improper

foreign corporate payment. Rather, the SEC, true to its mission,

was focused on ensuring disclosure of material foreign corporate

payments to investors...”).

the Congress.” 42 That restraint in the wake of

scandal—and the agency’s fact-driven approach—

allowed the SEC to preserve public trust while

enabling Congress to craft durable reforms.

B. Agencies Protecting Public Safety

Must Operate Free from Undue

Political Pressure.

Similarly, Congress created the Consumer Product

Safety Commission (“CPSC”) to protect “the public

from risk or injury from consumer product,” 15 U.S.C.

§ 2053(a), and insulated it from politicization, 15

U.S.C. § 2053(a). 43 The CPSC’s independence enabled

swift, science-based regulation—most notably, the

national ban on lead-based paint, 44 which remains in

effect today despite decades of industry opposition. 45

42 Id. at 961–62 (citing The Activities of American Multinational

Corporations Abroad: Hearings Before the Subcomm. on Int’l

Econ. Policy of the H. Comm. on Int’l Relations, 94th Cong. 2, 72

(1975)) (statement of Philip Loomis, Comm’r, SEC).

43 See also Angel Manuel Moreno, Presidential Coordination of

the Independent Regulatory Process, 8 Admin L.J. Am. U. 461,

476 n.71 (1994).

44 CPSC, Ban of Lead-Containing Paint and Certain Consumer

Products Bearing Lead Containing Paint, 16 C.F.R. § 1303 (1978).

45 See, e.g., David Rosner & Gerald Markowitz, Why It Took

Decades of Blaming Parents Before We Banned Lead Paint, The

Atlantic

(Apr.

22,

2023),

https://www.theatlantic.com/health/archive/2013/04/why-it-tookdecades-of-blaming-parents-before-we-banned-leadpaint/275169/; Perry Gottesfeld, Lead Industry Influence in the

Much of CPSC’s work protects children, including

everything from furniture tip-overs to seated infant

swings. 46 In 2023, CPSC secured a $19 million penalty

against Peloton for concealing injuries and fatalities

linked to its Tread+ treadmill, 47 which killed a child

and injured thirteen others, causing “broken bones,

lacerations, abrasions and friction burns.” 48

Independence is especially vital in modern

markets, where new technologies pose evolving

threats. Each of the CPSC’s major safety

achievements required years of consistent oversight

and agency resistance to political and industry

pressure. 49 If it is robbed of its independence and

21st Century: An Old Playbook for a “Modern Metal,” 112 Am. J.

Pub. Health S723 (2022).

46 CPSC, Safety Standard for Clothing Storage Units, 16 C.F.R.

§§ 1112, 1261 (2022); CPSC, Safety Standard for Infant and

Cradle Swings, 16 C.F.R. § 1223 (2025).

47 Press Release, CPSC, Peloton Agrees to Pay $19 Million Civil

Penalty for Failure to Immediately Report Tread+ Treadmill

Entrapment Hazards and for Distributing Recalled Treadmills

(Jan.

2023),

https://www.cpsc.gov/Newsroom/NewsReleases/2023/Peloton-Agrees-to-Pay-19-Million-Civil-Penaltyfor-Failure-to-Immediately-Report-Tread-TreadmillEntrapment-Hazards-and-for-Distributing-Recalled-Treadmills.

48 Id.; see also S.S. ex rel. Stern v. Peloton Interactive, Inc., 566

F. Supp. 3d 1019, 1029 (S.D. Cal. 2021) (alleging three-year-old

pulled underneath Tread+ was seriously injured).

49 See, e.g., Andrew Martin, After Long Battle, Safer Cribs, N.Y.

Times,

(July

15,

2011),

made vulnerable to presidential whims that prioritize

corporate donors or narrow self-interested goals of the

president’s political party, the agency’s mission to

protect families and children would be compromised.

The National Transportation Safety Board

(“NTSB”) offers another example of successful

independence. Its five members, who serve staggered,

five-year terms, 49 U.S.C. § 1111(b)–(d), are charged

with investigating transportation accidents. 50 Its

structure and its members’ expertise ensure that its

findings are grounded in evidence, not politics or

industry pressure. 51

Beginning in 1987, the NTSB recommended

periodic inspections of pipelines. 52 Following two

back-to-back gas pipeline explosions in Washington

and New Mexico 1999 and 2000, resulting in three and

twelve deaths, respectively, 53 the NTSB found that

the accidents were caused by preventable and

https://www.nytimes.com/2011/07/16/business/with-new-safetyrules-for-cribs-makers-scramble-and-retailersfume.html#:~:text=The%20most%20pronounced%20change%20i

s,their%20products%20to%20tougher%20testing.

50 Paul MacMahon, Soft Adjudication, 69 Admin. L. Rev. 529,

547–48 (2017).

51 See id.

52 Carol

M. Parker, Note, The Pipeline Industry Meets Grief

Unimaginable: Congress Reacts with the Pipeline Safety

Improvement Act of 2002, 44 Nat. Resources J. 243, 248 (2004).

53 Id. at 245–48.

detectable corrosion or damage. 54 The NTSB report

prompted bipartisan outcry in Congress about the lack

of proper regulation and enforcement, leading to

passage of the Pipeline Safety Improvement Act of

2002, signed into law by President George W. Bush. 55

Again, agency independence and expertise built public

trust and prompted bipartisan legislative action.

More recently, NTSB played a leading role

encouraging proper regulation of autonomous vehicle

safety 56 and publicly criticizing the National Highway

Traffic Safety Administration for its inaction 57 —an

54 Id. at 248–49; Daryl C. McClary, Olympic Pipe Line accident

in Bellingham kills three youths on June 10, 1999,

HistoryLink.org

(June

11,

2003),

https://www.historylink.org/File/5468#:~:text=The%20National

%20Transportation%20Safety%20Board%20(NTSB)%20ruled,fi

nes%20and%20most%20civil%20claims%20against%20them.

55 Parker, supra n. 52 at 247, 249.

Daisuke Wakabayashi, Self-Driving Uber Car Kills

Pedestrian in Arizona, Where Robots Roam, N.Y. Times (Mar. 19,

2018),

https://www.nytimes.com/2018/03/19/technology/uberdriverlessfatality.html#:~:text=Promising%20to%20keep%20oversight%2

0light,a%20street%20in%20Tempe%2C%20Ariz

(discussing

NTSB investigation of an accident in which an autonomous

vehicle killed a pedestrian).

57 Robert L. Sumwalt III, Chairman, Nat’l Transp. Safety Bd.,

Comment Letter on Proposed Framework for Automated Driving

System

Safety

4–5,

7–8

(Feb.

2021),

https://www.regulations.gov/comment/NHTSA-2020-0106-0617.

example of how independence fosters accountability

even within the executive branch.

The record of the SEC, CPSC, and NTSB

underscores a single principle: independent agencies

effectively protect the public precisely because they

are insulated from political control. Their legitimacy

arises from expertise, continuity, and a focus on the

long-term public interest rather than shifting partisan

agendas, as enforced by a president wielding the

power to fire any independent agency leader for any

reason. Weakening their independence would not

increase accountability—it would invite instability in

the very markets and sectors that most require public

confidence and steady, expert governance.

IV.

The Dangers of Industry Capture

Underscore the Need for Independent

Commissions.

Congress intentionally designed independent

regulatory commissions—including the FTC—to resist

direct presidential control and industry pressure. In

contrast, executive agencies led by presidential

appointees subject to at-will removal routinely

succumb to “agency capture.”

Agency capture “occurs when a regulated entity—

like a large corporation, or [] an association of

corporate interests—succeed[s], through lobbying or

other influential devices, in replacing what would

otherwise be the public-policy agenda of the agency

with its own private and self-serving agenda.” 58 Wellresourced industries can exert disproportionate

influence over agency policymaking by cultivating

relationships with agency officials, controlling the

information those officials receive, and offering highly

profitable future career opportunities. Ultimately,

agency capture threatens effective governance,

leading to regulatory inaction, underenforcement, and

decisions that are not grounded in the public interest.

Agencies led by political appointees subject to atwill removal are particularly vulnerable to agency

capture. Their appointed leaders’ careers depend on

maintaining favor with the industries they oversee—

industries that exploit the constant risk of at-will

removal, for any reason or no publicly stated reason,

by a president at whom they can direct their lobbying

and donor operations. Independent commissions with

for-cause removal protections, on the other hand, are

immune from this dynamic, allowing them to

prioritize the public interest and their statutory

mission.

58 Mark C. Niles, On the Hijacking of Agencies (and Airplanes):

The Federal Aviation Administration, “Agency Capture,” and

Airline Security, 10 Am. U. J. Gender Soc’y Pol’y & L. 381, 390

(2002).

A. The FAA’s Pattern of Appeasing the

Airline Industry Illustrates the

Risks of Capture.

The Federal Aviation Administration’s (“FAA”)

all-too-frequent submission to the airline industry

that it is mandated to regulate demonstrates how,

without structural protection, industries can capture

their regulators—with catastrophic consequences for

the American public. Housed within the Department

of Transportation, 49 U.S.C. § 106(a), the FAA has a

“dual mandate” 59 to both regulate and promote the

aviation industry. See 51 U.S.C. § 50903(b)-(c). Thus,

it must balance “the protection of airline safety” and

“the

promotion

airline

profitability.” 60

Unfortunately, the FAA routinely favors the latter.

Through its powerful lobbying groups 61 and a

revolving door between the FAA and major airlines, 62

the airline industry has leveraged the FAA’s structure

to its advantage. As one FAA veteran put it: “[T]he

industry, they really own the FAA.” 63

The FAA’s capture is evident in its long history of

rejecting or delaying the independent NTSB’s safety

59 Rachel Lindbergh, Cong. Rsch. Serv., IF12508, Commercial

Human Spaceflight Safety Regulations (2025).

60 Niles, supra n. 58 at 407.

61 Drew H. Nunn, Grounded: How the 737 Max Crashes

Highlight Issues with FAA Delegation and A Potential Remedy in

the Federal Tort Claims Act, 85 J. Air L. & Com. 703, 729–30

(2020) (“The lobbying groups behind the airline industry are

recommendations, which are often expensive and thus

prompt pushback from the airlines. For example, the

NTSB first recommended that commercial airlines be

equipped with smoke detectors in 1975. 64 But it took

nearly 10 years, and a fire in an Air Canada bathroom

that killed 23 passengers, before the FAA finally

adopted this recommendation. 65 When the

independent NTSB called for the same safety

measures to extend to older aircrafts, the nonindependent FAA again declined to act until after an

airplane fire killed 110 people. 66 A congressional

investigation later revealed that the FAA had rejected

the NTSB recommendations due to its belief that “the

gain in safety would not justify the cost.” 67

Likewise, after the 1996 TWA Flight 800 crash, the

FAA failed to fully implement 31 recommendations

considered some of the most powerful and effective in the United

States.”).

Patrick Malone, How the revolving door at FAA spins

Boeing’s way, Seattle Times (Oct. 30, 2024, at 6:00 a.m.),

https://www.seattletimes.com/business/boeing-aerospace/howthe-revolving-door-at-faa-spins-boeings-way/ (“At the FAA, it’s

common for senior political appointees to come from industry, and

return to it after their tours in government.”).

63 Niles, supra n. 58, at 384.

64 Id. at 417.

65 Id.

66 Id.

67 Id.

made by a White House Commission to tighten airport

and airline security, which the airline industry

opposed as overly burdensome. 68 Today, many

observers agree that had the recommendations been

implemented, the September 11, 2001 attacks might

have been prevented. 69

More recently, the Boeing 737 MAX tragedies,

where two plane crashes claimed 346 lives soon after

the aircraft was certified, 70 can be attributed to the

FAA’s delegation of certain safety certification

responsibilities to Boeing itself. 71 This delegation

occurred via a program 72 for which the airline industry

(including Boeing) had long, and aggressively,

lobbied. 73 After investigating the MAX tragedies,

68 Id. at 410–12.

69 Nunn, supra n. 61, at 730; Niles, supra n. 58, at 411.

70 Staff

of H. Comm. on Transp. and Infrastructure, 116th

Cong., Final Committee Rpt. on Boeing 737 Max 5–6 (Comm.

Print 2020).

71 Natalie Kitroeff, et al., The Roots of Boeing’s 737 Max Crisis:

A Regulator Relaxes Its Oversight, N.Y. Times (July 27, 2019),

https://www.nytimes.com/2019/07/27/business/boeing-737-maxfaa.html.

72 Dep’t

of Transp., Organization Designation Authorization

(ODA)

Office,

https://www.faa.gov/about/office_org/headquarters_offices/avs/of

fices/oda.

73 See generally Nick Schwellenbach & Emma Stodder, How the

FAA Ceded Aviation Safety Oversight to Boeing, Project on Gov’t

Congress issued a scathing report finding that the

crashes were, in part, the result of “grossly insufficient

oversight by the FAA—the pernicious result of

regulatory capture.” 74

B. The FSIS’s Ongoing Deference to the

Agricultural

Industry

Also

Evidences Agency Capture.

The Food Safety and Inspection Service (“FSIS”), a

division of the USDA, is similarly structured with

leadership subject to presidential appointment and atwill removal. 75 FSIS’s mission is “to protect the

public’s health by ensuring the safety of meat, poultry,

and processed egg products, 76 but it too has a history

of being captured by the industry it regulates. The

result is weakened safety standards, delayed

responses to contamination and preventable illness

and death—outcomes that likely would be minimized

Oversight (Mar. 28, 2019), https://www.pogo.org/analysis/howthe-faa-ceded-aviation-safety-oversight-to-boeing.

74 Staff of H. Comm. on Trans. and Infrastructure, 116th Cong.,

supra n. 70 at 6.

75 The FSIS is overseen by the Under Secretary of Agriculture

for Food Safety, a position which is appointed by the president

and subject to at-will removal. See 7 U.S.C. § 6981(a).

76 U.S. Dep’t of Ag., 2025 USDA Explanatory Notes – Food

Safety

and

Inspection

Service

24-1

(2025)

https://www.usda.gov/sites/default/files/documents/24-FSIS2025-ExNotes.pdf.

were the FSIS insulated from industry pressure or

threats of presidential reprisal.

For example, following the first known E. coli

outbreak in 1982, which sickened 24 Oregonians, the

FSIS made no meaningful reforms to detect food-borne

microbial pathogens and continued to use the outdated

“poke and sniff” inspection method from 1906. 77 Even

after a 1985 National Academy of Sciences (“NAS”)

report concluded that the “poke and sniff” method

could not detect food-borne microbial pathogens and

recommended a science-based inspection system, the

FSIS continued to ignore calls for change, instead

capitulating to the beef industry’s pushback. 78

Industry opposition later killed one of the few

meaningful proposals to protect Americans from foodborne pathogens in meat. In 1993, after contaminated

hamburger meat from Jack in the Box killed four

people and sickened hundreds, 79 the FSIS finally

introduced a rule that would implement the inspection

system suggested in the 1985 NAS report. 80 In

77 Dion Casey, Agency Capture: The USDA’s Struggle to Pass

Food Safety Regulations, 7 Kan. J.L. & Pub. Pol’y 142, 146–48

(1998).

78 Id.

79 Brian Daluiso, “Is the Meat Here Safe?” How Strict Liability

for Retailers Can Lead to Safer Meat, 92 B.U. L. Rev. 1081, 1091

(2012).

Casey, supra n. 77, at 142, 148–49.

response, beef industry trade groups successfully

mounted a coordinated campaign to weaken and delay

reform: the FSIS’s final rule dropped key safety

provisions and relaxed testing requirements. 81 As one

USDA inspector put it, the final rule let meatpackers

“police themselves.” 82 Predictably, less than two years

after the FSIS promulgated its watered-down rule, the

USDA issued its largest-ever meat recall—25 million

pounds of ground beef—after 16 people were

diagnosed with E. coli from meat which came from a

plant that had “glaring problems with [its] meat

handling, record keeping, and safety testing.” 83

More recently, in 2019, the FSIS’s Modernization

of Swine Slaughter Inspection Ruling eliminated

processing line speed limits at processing plants 84 and

transferred key inspection tasks previously handled

by FSIS to pork producers’ own employees. 85 Food

safety and labor advocates expressed deep concerns

81 Id., at 142, 150–54.

82 Id. at 142, 155–56.

83 Id.at 142, 154–55.

Kelsey Crawford & Patti Truant Anderson, Policy and

Practice Brief on the 2019 New Swine Inspection System, Line

Speeds, and Workers, J. Ag., Food Systems, & Cmty. Dev. 279,

Spring 2025, at 280.

85 Zoe A. Bernstein, The Fight over Frankenmeat: The FDA As

the Proper Agency to Regulate Cell-Based “Clean Meat”, 86 Brook.

L. Rev. 593, 602–03 (2021).

over these changes, 86 which reduced federal oversight

and enabled faster production speeds (at the risk of

jeopardizing the health and safety of workers), while

the pork industry enthusiastically supported them. 87

That the FSIS adopted these changes further

illustrates that the agency prioritizes industry over

consumers and workers.

The experiences of the FAA and FSIS highlight the

very real dangers of agency capture and the

importance of maintaining regulatory commissions’

independence. Disturbing Congress’s decision to enact

removal protections would likely jeopardize the

structural independence that enables expert

86 Id. at 603; see generally Deborah Berkowitz, Nat’l Emp. L.

Proj., Trump Agriculture Department’s Proposed New Swine

Slaughter Inspection System Will Endanger Public Health,

Worker

Safety,

and

Animal

Welfare

(2018),

https://www.nelp.org/insights-research/trump-agriculturedepartments-proposed-new-swine-slaughter-inspection-systemwill-endanger-public-health-worker-safety-animal-welfare/;

Crawford & Truant, supra n. 84, at 279 (“[T]here is strong

evidence that line speed is associated with higher worker

perceptions of injury risk, lower worker well-being, and higher

risk of injuries from repetitive tasks. Additionally, line workers

unanimously oppose increases to line speed and are advocating

for reduced line speeds.”).

87 See Modernization of Swine Slaughter Inspection, 84 Fed.

Reg. 52300, 52313 (Oct. 1, 2019) (“Members of the pork industry

and trade associations representing members of the pork

industry supported FSIS's proposal to revoke maximum line

speed limits for establishments operating under NSIS.”); see also

Bernstein, supra n. 85, at 603.

regulators like the FTC and others to fulfill their

statutory missions free from undue political and

industry influence via threatened and actual

presidential retaliation.

Invalidating Removal Protections for

the FTC and Other Agencies Will Put

Americans at Risk.

Stripping the FTC and other independent agencies

of their removal protections would have grave

consequences for consumers and markets alike.

Overruling the decades-old Humphrey’s Executor

would risk transforming expert, bipartisan agencies

into political instruments beholden to partisan and

corporate interests that are channeled through the

president.

A. A Politicized FTC Will Retreat from

Protecting Consumers.

The erosion of independent oversight at the FTC

threatens not only consumers’ economic and physical

safety, but digital privacy and national security as

well. Without robust, independent oversight, data

brokers and aggregators are free to operate with

impunity—harvesting and selling sensitive personal

information, including information on Americans’

health, finances, and religious practices. 88 However,

88 Justin Sherman et al., Data Brokers and the Sale of Data on

U.S. Military Personnel: Risks to Privacy, Safety, and National

Security 3 (2023), https://techpolicy.sanford.duke.edu/wp-

today’s FTC appears unwilling to take meaningful

action against these firms, failing, for example, to

finalize a nearly year-old proposed order against

General Motors over the automaker’s unlawful

disclosure

drivers’

precise

geolocation

information. 89

Modern commercial surveillance practices pose a

particular danger to children. Yet, since the

unjustified removals of Commissioners Slaughter and

Bedoya, the FTC has failed to take any significant

action on its pending administrative case against

Meta, which concerns allegations that the social media

giant failed to comply with an existing FTC consent

order and misled parents about key privacy settings

for children. 90

content/uploads/2023/11/Sherman-et-al-2023-Data-Brokers-andthe-Sale-of-Data-on-US-Military-Personnel.pdf.

Press Release, FTC, FTC Takes Action Against General

Motors for Sharing Drivers’ Precise Location and Driving

Behavior

Data

Without

Consent

(Jan.

16,

2015),

https://www.ftc.gov/news-events/news/pressreleases/2025/01/ftc-takes-action-against-general-motorssharing-drivers-precise-location-driving-behavior-data.

90 Press Release, FTC, FTC Proposes Blanket Prohibition

Preventing Facebook from Monetizing Youth Data (May 3, 2023),

https://www.ftc.gov/news-events/news/pressreleases/2023/05/ftc-proposes-blanket-prohibition-preventingfacebook-monetizing-youth-data; FTC, Facebook, Inc., In the

Matter

(May

2025),

https://www.ftc.gov/legallibrary/browse/cases-proceedings/092-3184-182-3109-c-4365facebook-inc-matter.

As current FTC Chair Andrew Ferguson warned—

one day before Commissioner Slaughter’s firing—

politicization risks rendering FTC guidance “basically

meaningless if they just are like one-party statement

of its view . . . Courts won’t follow them any more if

they think that they’re just openly partisan, regulated

entities won’t rely on them to plan.” 91 Without the

bipartisan balance and moderation that comes with

independence and removal protections, the FTC risks

losing both its focus and the public’s trust as an

impartial, expert regulator.

B. Politicizing

the

CPSC

Jeopardize Public Safety.

Would

The CPSC—another independent agency whose

structure is at issue in Trump v. Boyle, 606 U.S. ---,

145 S. Ct. 2653 (2025)—plays a critical role in

preventing injuries and deaths caused by unsafe

consumer products, as discussed above. Supra, § III.B.

Given that much of the CPSC’s regulatory activities

concern infants and toddlers, 92 politicizing that

91 Odd Lots: FTC Chief Andrew Ferguson on the Trump Vision

for Antitrust, at 10:17 (YouTube, May.

https://www.youtube.com/watch?v=pLFiWrEmbfs.

17,

2025),

92 See, e.g., CPSC, Ban of Lead-Containing Paint and Certain

Consumer Products Bearing Lead Containing Paint, 16 C.F.R. §

1303 (1978); Gabriel Allen, Note, Get the Lead Out: A New

Approach for Regulating the U.S. Toy Market in a Globalized

World, 36 Ga. J. Int'l & Compar. L. 615, 617–18 (2008); Joe

Hernandez, Consumer safety regulators adopt new rules to

prevent dresser tip-overs, NPR (Apr. 26, 2023, at 5:00 AM ET),

agency jeopardizes the health and safety of American

children. 93

Industry groups have long sought to relax

stringent product safety standards for children’s

products. 94 Without removal protections, a politically

dependent CPSC could succumb to that pressure. The

risk is not theoretical: since the current

administration fired three commissioners, the CPSC

has delayed long-planned, critical safety rules for

water bead toys—rules to address poisoning and

choking hazards and that previously enjoyed

bipartisan support. 95 A partisan or industry-captured

https://www.npr.org/2023/04/26/1172027172/dresser-tipoverchildren-consumer-safety; Richard J. Hunter, Jr. & Melissa A.

Montuori, The Hand That Truly Rocks the Cradle: A Reprise of

Infant Crib Safety, Lawsuits and Regulation from 2007-2012, 25

Loy. Consumer L. Rev. 229 (2013).

93 Request for Information on Reducing Regulatory Burdens, 90

Fed. Reg. 24791 (June 12, 2025).

94 See, e.g., Eileen Flaherty, Note, Safety First: The Consumer

Product Safety Improvement Act of 2008, 21 Loy. Consumer L.

Rev. 372, 387–90 (2009) (discussing industry opposition to lead

paint in toy standards); Rachel Rabkin Peachman, Furniture TipOvers: A Hidden Hazard in Your Home, Consumer Reports

(March 22, 2018), https://www.consumerreports.org/homegarden/furniture/furniture-tip-overs-hidden-hazard-in-yourhome-a2683907691/

(describing

furniture

manufacturer

pushback to mandatory furniture tip-over rules).

95 See, e.g., Ramishah Maruf, US safety commissioners blast

Trump appointee’s delay of ruling on water beads, CNN (July 18,

2025,

11:23

EDT),

CPSC would mean weaker oversight, more defective

products, and greater danger to families.

Congress created independent commissions to

serve the public interest, not political expediency or

corporate profit. Overruling Humphrey’s Executor

would dismantle these protections and cause realworld harm to everyday Americans, particularly the

most vulnerable. The Court should reject this

dangerous path and reaffirm the constitutional and

practical necessity of agency independence.

https://www.cnn.com/2025/07/17/business/cspc-water-beadschildren (“The tiny balls made out of extremely absorbent

polymer material can expand to 100 times their initial size and

weight when exposed to liquid . . . When children swallow them,

they’re in danger of suffering a blocked digestive or respiratory

tract, or poisoning by toxic chemicals.”); id. (Consumer Product

Safety Commission member Richard Trumka, Jr. said,

“Yesterday, July 16, 2025, we were supposed to see a final rule

that would have protected children from life-threatening hazards

tied to water beads;” instead acting Chair Peter Feldman,

nominated by President Trump, “blocked the agency from

delivering on that promise, without even bothering to explain

why.”).

CONCLUSION

The judgment of the United States District Court

for the District of Columbia should be affirmed.

Respectfully submitted,

JULIA R. MCGRATH

WILLIAM H. FEDULLO

BERGER MONTAGUE PC

1818 Market Street

Suite 3600

Philadelphia, PA 19103

JESSICA SEIGEL

BERGER MONTAGUE PC

505 Montgomery Street

Suite 625

San Francisco, CA 94111

ARIANA B. KIENER

BERGER MONTAGUE PC

1229 Tyler Street NE

Suite 205

Minneapolis, MN 55413

F. PAUL BLAND

Counsel of Record

BERGER MONTAGUE PC

1001 G Street, NW

Suite 400 East

Washington, DC 20001

(202) 559-9740

pbland@bm.net

SETH E. MERMIN

DAVID S. NAHMIAS

CENTER FOR CONSUMER LAW &

ECONOMIC JUSTICE

UC BERKELEY SCHOOL

OF LAW

305 Law Building

Berkeley, CA 94720-7200

Counsel for Amici Curiae

November 13, 2025

APPENDIX

APPENDIX TABLE OF CONTENTS

Page

List of Amici ............................................................... 1a

List of Amici Curiae

10.

11.

12.

13.

14.

15.

16.

17.

18.

19.

20.

21.

22.

23.

24.

25.

26.

27.

28.

29.

Americans for Financial Reform Education

Fund

Better Markets

Center for Democracy & Technology

Center for Digital Democracy

Center for Economic Justice

Center for Responsible Lending

Clean Elections Texas

Community Economic Empowerment Network

Consumer Action

Consumer Federation of America

Consumer Federation of California

Consumers for Auto Reliability and Safety

Demand Progress Education Fund

Electronic Privacy Information Center

Food & Water Watch

Georgia Watch

Impact Fund

Inclusiv

Institute for Local Self-Reliance

Interfaith Center on Corporate Responsibility

League of United Latin American Citizens

National Association of Consumer Advocates

National Consumer Law Center

National Consumers League

New Jersey Appleseed Public Interest Law

Center

NextGen Competition

Oregon Consumer Justice

Oregon Consumer League

Protect Borrowers (a fiscally sponsored project

of the Shared Ascent Fund)

30.

31.

32.

33.

34.

35.

36.

37.

38.

39.

40.

Public Counsel

Public Good Law Center

Public Justice

The Leadership Conference on Civil and

Human Rights

The Project on Predatory Student Lending

The Strategic Organizing Center

Truth in Advertising, Inc.

Tzedek DC

Virginia Citizens Consumer Council

Virginia Poverty Law Center

X-Lab

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.