President Trump has fired two of the Democratic members of the FTC. While the removal restrictions have been widely discussed and may be struck down, a separate question is whether the bipartisan provision of the FTC Act — requiring the commission to be composed of members from different political parties — is constitutional. This will become an issue if the President seeks to nominate and the Senate to confirm persons who would violate the bipartisan requirement.
One could easily imagine the FTC or other commissions being subject to plenary removal authority by the President but still having to be composed of members from different political parties. In fact, there is a reasonable argument that this bipartisanship requirement is desirable, since it requires members of the other political party to be on the inside of the agency. These members could blow the whistle on wrongdoing by the agency. These members would also promote deliberation. See here where I argue for the desirability of this arrangement.
But are such bipartisan requirements constitutional? It is not clear. One might conclude that they infringe on the appointment authority of the President (and the Senate). It is for the President (and the Senate) to determine who is fit to serve on these commissions.
Alternatively, one might argue that Congress's power to define the office also permits it to include reasonable qualifications for the office, such as being learned in the law for the solicitor general. These qualifications would have to be related to the job and be general in form. Being a member of a political party likely fits this reasonable qualification requirement.
In the end, deciding between these two positions based on the original meaning is likely to turn on both a significant inquiry into the history and a more refined analysis.
Posted at 8:01 AM