Broadband Breakfast on April 23, 2025 - Are Independent Agencies Constitutional?

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Are independent agencies like the Federal Trade Commission and the Federal Communications Commission Constitutional? They operate outside direct presidential control but wield combined legislative, executive, and judicial powers. They originated in the progressive and New Deal eras, when Congress created the FTC in 1914, the Federal Radio Commission (the precursor to the FCC) in 1927, and the Securities and Exchange Commission in 1934. 

The structure of the independent agency was upheld by the Supreme Court in Humphrey’s Executor (1935). But recent rulings like Seila Law (2020) suggest some degree of skepticism from the current high court. Now that President Trump claims to have fired the two Democratic FTC commissioners, is the long-established structure of an independent agency a safe option anymore?

Legal Experts Warn of Looming Supreme Court Reckoning

The panel took place following President Trump’s efforts to remove sitting Democratic commissioners from the FTC.

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Panelists

• Harold Furchtgott-Roth, Senior Fellow and Director, Center for the Economics of the Internet, Hudson Institute
• Howard Beales, Professor Emeritus of Strategic Management and Public Policy, The George Washington University
• Peter M. Shane, Distinguished Scholar in Residence and Adjunct Professor at NYU Law
• Corbin Barthold, Internet Policy Counsel and Director of Appellate Litigation, TechFreedom
• Drew Clark (moderator), CEO and Publisher, Broadband Breakfast

Harold Furchtgott-Roth, former commissioner of the Federal Communications Commission, is a senior fellow at Hudson Institute, where he founded the Center on the Economics of the Internet and helped cofound the Forum for Intellectual Property. He is president of Furchtgott-Roth Economic Enterprises, an economic consulting firm and has cofounded various businesses in the communications sector. He is the author and coauthor of several books including A Tough Act To Follow, which directly addresses the frailties of the structure of independent agencies.

Howard Beales taught in the School of Business at the George Washington University, from 1988 through 2019.  His research interests include a wide variety of consumer protection regulatory issues, including privacy, law and economics, and the regulation of advertising. He has published numerous articles addressing these issues in academic journals. In 2020, he served as a member of the Consumer Financial Protection Board’s Taskforce on Federal Consumer Financial Law. From 2001 through 2004, Dr. Beales served as the Director of the Bureau of Consumer Protection at the Federal Trade Commission.

Peter M. Shane is Distinguished Scholar in Residence and Adjunct Professor at NYU Law, as well as Jacob E. Davis and Jacob E. Davis II Chair in Law Emeritus at the Ohio State University’s Moritz College of Law. In over forty years of law school teaching, he has regularly offered courses in constitutional and administrative law, law and the presidency, and subjects at the intersection of law, democracy, and new media. A Contributing Writer to Washington Monthly, Peter is the author of over seventy law review articles, as well as nine books including, Democracy’s Chief Executive: Interpreting the Constitution and Defining the Future of the Presidency (University of California Press 2022).

Corbin Barthold is Internet Policy Counsel and Director of Appellate Litigation at TechFreedom. He writes on tech legal, regulatory, and social issues for a wide range of outlets, including City Journal, The Bulwark, Reason, Lawfare, Techdirt, and The Daily Beast. He also hosts the Tech Policy Podcast, where he interviews some of the tech world's best journalists, lawyers, and academics. He received his J.D. from the University of California, Berkeley, School of Law.

Breakfast Media LLC CEO Drew Clark has led the Broadband Breakfast community since 2008. An early proponent of better broadband, better lives, he initially founded the Broadband Census crowdsourcing tool to collect and verify broadband data left unpublished by the Federal Communications Commission. As CEO and Publisher, Clark presides over the leading media community advocating for higher-capacity internet everywhere through topical, timely and intelligent coverage. Clark also served as head of the Partnership for a Connected Illinois, a state broadband initiative.