Editor’s Note: This story has been updated to correctly update the way in which the three members of the NCUA board were appointed to the positions.

WASHINGTON–Could President Trump fire the Democratic members of the NCUA board?

While the idea seems far-fetched and those with whom the CU Daily spoke emphasized they have not heard or seen anything that suggest such a scenario is being considered, what was once unthinkable has entered the realm of discussion after the president fired the two Democratic commissioners who served on the board of the Federal Trade Commission (FTC).

The firing was a shock to many in Washington and is yet another challenge by the Trump administration to tradition, the concept of regulatory independence, and Supreme Court precedent.

In one of his actions after taking office, Trump signed an executive order exerting control over what were long viewed as independent federal agencies. 

“Your continued service on the F.T.C. is inconsistent with my administration’s priorities,” Trump said in a communication to the two Democratic FTC commissioners, Rebecca Slaughter and Alvaro Bedoya. 

The firing leaves just two Republicans on the board of the FTC. A third Republican, Mark Meador, is still awaiting Senate confirmation.

‘Something We’re Tracking’

“It’s certainly something we are tracking,” said James Akin, senior regulatory affairs counsel with America’s Credit Unions, adding the trade group has been watching with an interested eye what is taking place with the other executive orders being signed by Trump and the “expanded view” of executive power being wielded by the administration.

Akin, along with Carrie Hunt, ACU’s chief advocacy officer and also an attorney, both stressed they were not seeking to offer a legal opinion on the president’s authority, and cited the precedent set by the 1935 case known as Humphrey’s Executor. In that case, the Supreme Court ruled that the President could not remove a FTC commissioner for reasons other than those specified in the Federal Trade Commission Act, which limited removal to “inefficiency, neglect of duty, or malfeasance in office.

In other words, not for political reasons.

A Different View

But FTC Chairman Andrew Ferguson said in an interview he has “no doubts” about the constitutionality of the the firing of the two FTC commissioners.

Fired FTC commissioners  Slaughter and Bedoya said they will fight the decision in court.

Akin noted the Supreme Court has supported the president’s authority to remove the single director of agencies, such as the CFPB. But the National Credit Union Administration is overseen by a board. Two of the current board members are Democrats: Todd Harper and Tonya Otsuka. Its chairman, Kyle Hauptman, is a Republican. Harper was appointed by Trump in 2019 to a partial term. Hauptman was appointed by Trump in 2020 and confirmed that same year. Harper was then appointed for a full term by Biden in 2021 and confirmed in 2022. Otsuka was appointed by Biden and confirmed in 2023.

Akin said America’s Credit Unions believes the separation of powers outlined in the Constitution should protect the independence of the NCUA board.

Avoiding ‘Radical Swings’

Hunt said the trade group supports the current three-member board (although credit unions have lobbied for it to be expanded to five members), saying having a board rather than a single director helps lead to more rational decision-making and prevents “radical swings.”

Hunt said she has heard nothing to indicate the NCUA board members might be targeted by an executive order that essentially fires them. (But credit unions and many others were also caught off-guard by a March 14 executive order that eliminated, among other things, the Community Development Financial Institutions Fund). 

By statute, Hunt pointed out, only two members of the board are allowed to be from the same party. 

‘Questionable’ Strategy

Hunt said she believes it’s “questionable” whether the White House would ever attempt to make any changes on the NCUA board, saying the only potential risk would depend on the “regulatory path” pursued by the Democratic board members or if they attempted to “usurp” the authority of the chairman and push regulations that run counter to those prioritized by the Trump administration.

“But there is no indication that is occurring,” she said.  “There have been no indications (the White House) is close to removing anyone.”

Board Members Harper and Otsuka did both recently issue public statements rebuking Hauptman for his announcement during GAC that the agency was reversing course and would no longer publish the income generated by billion-dollar-plus credit unions from NSF fees and overdrafts. That change in policy was not voted on by the NCUA board. 

How all of this might play out would typically depend on how the courts rule and have ruled, explained Akin, citing the legal concept of “stare decisis,” or following precedents set by rulings in similar cases and circumstances. 

Interpreting the Constitution

At issue, said Akin, has always been and will be interpretations of Article II of the Constitution, which establishes the executive branch and which outlines the president’ powers and responsibilities. 

But he also conceded the Trump administration has been turning precedent on its head.

“The president could do something before a case is decided,” said Akin. “This administration is moving fast and does not feel the need to wait.”