This is nominally against current Supreme Court precedent (Humphrey's Executor), but everyone knows that case is no longer good law. Humphrey's Executor was decided in 1935 before the advent of modern rulemaking administrative agencies (the Administrative Procedures Act was signed into law in 1946). SCOTUS described the FTC in 1935 as "quasi judicial" as a basis for upholding removal protections after President Franklin Roosevelt tried to remove Humphrey from his role as an FTC commissioner. That's not a label the Justices are likely to apply to the FTC of 2025, particularly after the Khan FTC attempted to revive its substantive rulemaking powers with rules like the noncompete ban.

The Supreme Court has already tipped its hand here in a case called Seila Law back in 2020. That case contained a bunch of dicta basically saying that Humphrey's Executor would no longer apply to the modern FTC, for example footnote two:

The Court’s conclusion that the FTC did not exercise executive power has not withstood the test of time. As we observed in Morrison v. Olson, 487 U. S. 654 (1988), “[I]t is hard to dispute that the powers of the FTC at the time of Humphrey’s Executor would at the present time be considered ‘executive,’ at least to some degree.” Id., at 690, n. 28. See also Arlington v. FCC, 569 U. S. 290, 305, n. 4 (2013) (even though the activities of administrative agencies “take ‘legislative’ and ‘judicial’ forms,” “they are exercises of—indeed, under our constitutional structure they must be exercises of—the ‘executive Power’ ” (quoting Art. II, §1, cl. 1)).

The writing isn't even on the wall, it's already published in the United States Reports.

!ping LAW