If the President Can Fire FCC Commissioners, Should the Agency Be Restructured?

Whatever notions one may have entertained in the past—or may still entertain—regarding the Federal Communications Commission as a so-called “independent” agency, it’s obvious that those notions may not hold true much longer. To be clear, the FCC’s supposed independence rests primarily on the claim that the agency’s commissioners may not be removed by the president without good cause and, as the Supreme Court put it in its landmark Humphrey’s Executor v. FTC (1935) decision regarding Federal Trade Commission commissioners, that they are “free from executive control. In her oft-cited Presidential Administration law review article published in 2001, then-Harvard Law School Dean and now-Supreme Court Justice Elena Kagan declared that the lack of presidential removal power of the heads of independent agencies, as opposed to the heads of executive branch ones, is “the core legal difference between these entities.” If the president may lawfully remove commissioners of the FCC for any reason or no reason—in other words, at will—it’s difficult to maintain that the agencies are “independent” in any meaningful sense. And if this proves to be the case, it will be advisable, if not necessary, to begin considering whether and how the FCC should be structured in this brave new administrative law world.

[Randolph May is Founder and President of the Free State Foundation. ]