The Electricity Law Initiative filed an amicus brief at the U.S. Supreme Court that seeks to preserve Congress’s authority to create and maintain bipartisan ratemaking commissions. Eleven former Commissioners at the Federal Energy Regulatory Commission (FERC) signed the brief, including FERC Chairs appointed by Presidents Clinton, Bush, Obama, Trump, and Biden.
The brief was filed in a case about whether the president may fire a commissioner at the Federal Trade Commission (FTC) without cause. The 1914 law that created the FTC provides that commissioners served fixed-year terms and may only be fired for “inefficiency, neglect of duty, of malfeasance in office,” terms of art that prevent the president from removing commissioners from office. In Humphrey’s Executor, the Supreme Court held that Congress had authority under the Constitution to create multi-member agencies, such as the FTC, led by commissioners who could not be fired by the president.
In the pending case, the president seeks to overturn the Court’s 1935 decision in Humphrey’s Executor by arguing that the FTC’s for-cause removal protections violate separation of power principles. According to the president, commissioners wield “executive” power, and as the head of the Executive Branch he may remove commissioners from office at any time.
The former FERC Commissioners’ amicus brief explains that for-cause removal protections are a cornerstone of Congress’s model for setting prices charged by companies that control channels of interstate commerce, such as railroads. Starting in 1887, Congress created several ratemaking commissions, including FERC, that have facilitated investment in strategically important industries. Commissions’ bipartisan compositions, reinforced by for-cause removal protections, tie the exercise of Congress’s ratemaking power to a deliberative body designed to sustain stable policies for the long-term benefit of regulated companies and American consumers. Because historical practice can inform the Court’s separation-of-powers analysis, Congress’s long-standing practice of creating bipartisan ratemaking commissions with for-cause removal protections supports affirming Humphrey’s Executor as consistent with the Constitution.
The brief also argues that ratemaking commissions’ for-cause removal protections raise economic, legal, and practical issues that are beyond the scope of this proceeding. Unwinding Congress’s ratemaking model is fraught with risk for the American economy. The brief argues that this case is not an appropriate vehicle for upending Congress’s ratemaking model. Regardless of what the Court decides about Humphrey’s Executor, amici request that the Court specify that its decision does not reach the distinct history and tradition of ratemaking commissions.