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DOJ calls protections for agency members unconstitutional

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Acting Solicitor General will ask SCOTUS to limit 90-year

old

precedent

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Trump faces lawsuits for firing members of independent

agencies

(Adds byline, bullets, background on firings of independent

agency members in paragraphs 7-10)

By Jody Godoy

Feb 12 (Reuters) - The U.S. Department of Justice will

cease defending the independent status of three consumer and

worker protection agencies, according to a letter posted by a

Democratic member of Congress on Wednesday.

The determination applies to the National Labor Relations

Board, U.S. Federal Trade Commission and Consumer Product Safety

Commission, according to the letter from Acting Solicitor

General Sarah Harris to Senator Richard Durbin, a Democrat from

Illinois and the ranking member of the Senate Judiciary

Committee.

Under a 90-year-old Supreme Court precedent, FTC

commissioners and members of many other bipartisan independent

agencies can only be fired for cause, unlike executive branch

agencies whose heads the president can fire at will.

The DOJ will ask the Supreme Court to overturn that ruling

to the extent that it protects regulators who wield "substantial

executive power" from being fired by the president, Harris

wrote, according to the letter.

"I am writing to advise you that the Department of Justice

has determined that certain for-cause removal provisions that

apply to members of multi-member regulatory commissions are

unconstitutional and the Department will no longer defend their

constitutionality," Harris said.

The Justice Department did not immediately respond to a

request for comment.

Once NLRB board members are confirmed, federal law

allows them to be removed only for "neglect of duty or

malfeasance in office." CPSC and FTC commissioners have similar

protections.

About two dozen companies, including Amazon ( AMZN ) and

Elon Musk's SpaceX, have filed lawsuits since last year claiming

the president should have the power to fire NLRB members at

will.

Several companies sued by the FTC have filed similar

challenges against that agency. They include Meta Platforms ( META )

, Walmart ( WMT ), and Cigna's ( CI ) Express Scripts.

Trump fired a member of the NLRB and a member of the

Merit Systems Protection Board, which hears appeals by federal

government employees when they are fired or disciplined, during

his first weeks in office. Both have sued over their firings.