Federal Trade Commission
| Administrative State |
|---|
 |
| Read more about the administrative state on Ballotpedia. |
| This article is a sprout; we plan on making it grow in the future. If you would like to help it grow, please consider donating to Ballotpedia. |
The Federal Trade Commission (FTC) is an independent federal agency established in 1914.[1]
Noteworthy events
President Trump fires FTC commissioners
On March 18, 2025, President Donald Trump fired Federal Trade Commission (FTC) Commissioners Alvaro Bedoya and Rebecca Kelly Slaughter, the two Democrats on the Commission. Bedoya and Slaughter argue that their firings were illegal and said they plan to sue to challenge this action. FTC Chairman Andrew Ferguson, a Republican, has defended the firing of these members as a legitimate exercise of presidential power.[2] Current Supreme Court precedent under the 1935 case Humphrey's Executor v. United States disallows the president from firing FTC commissioners for reasons other than "inefficiency, neglect of duty, or malfeasance in office."
Walmart files motion to dismiss a lawsuit brought by the FTC (2022)
Walmart on August 29, 2022, filed a motion to dismiss a suit brought against the company by the Federal Trade Commission (FTC), arguing that the FTC “lacks constitutionally valid authority to initiate litigation seeking monetary or injunctive relief,” according to the filing. Since the FTC is structured as an independent agency headed by a multi-member commission with protections against removal by the president, Walmart contended that the commission lacked the executive authority to sue private parties in federal court.[3]
FTC expands interpretation of its antitrust enforcement authority (2021)
The Federal Trade Commission (FTC) on July 1, 2021, voted 3-2 to broaden its interpretation of the commission’s Section 5 authority, which authorizes the FTC to investigate and challenge what it deems “unfair methods of competition in or affecting commerce.” The change could allow the agency to expand enforcement proceedings against companies that don’t expressly violate federal antitrust statutes.[4][5]
The new interpretation departs from the commission’s 2015 precedent, established through internal guidance, that relied on the consumer welfare standard to determine what constitutes antitrust activity. According to the consumer welfare standard, only companies that artificially raise prices qualify as monopolies for the purposes of FTC enforcement. The FTC did not pursue companies via this standard if enforcement through the Sherman Act or the Clayton Act could address the competitive harm.[4][5][6]
Under the FTC’s broadened interpretation of its authority, the commission can issue civil penalties to challenge what it deems to be anti-competitive behavior regardless of whether the behavior violates federal antitrust statutes. The change could allow the FTC to bring enforcement proceedings against tech companies that do not qualify as monopolies but that, in the opinion of FTC Chair Lina Khan, have been alleged to have exhibited anti-competitive practices.[4][5]
“Withdrawing the 2015 Statement is only the start of our efforts to clarify the meaning of Section 5 and apply it to today’s markets,” wrote Khan in a statement. “Section 5 is one of the Commission’s core statutory authorities in competition cases; it is a critical tool that the agency can and must utilize in fulfilling its congressional mandate to condemn unfair methods of competition.”[4][5][7]
FTC Commissioner Christine Wilson issued a dissenting statement arguing that the consumer welfare standard “promotes predictability, administrability and credibility in antitrust enforcement. Without it, we can expect that antitrust enforcement will reflect political motivations rather than reasoned and objective assessments of benefits and harms to consumers.”[8]
FTC faces due process challenge to adjudication, ALJs (2020-2022)
The following timeline identifies key events in a 2020-2022 lawsuit, Axon Enterprise, Inc. v. Federal Trade Commission, which concerns whether federal courts have the authority to review constitutional challenges to the structure of the Federal Trade Commission before plaintiffs raise such challenges during agency adjudication proceedings.
November 2022: SCOTUS hears oral arguments in appeal
The case was argued before the Supreme Court of the United States on November 7, 2022, during the court's October 2022-2023 term.[9]
January 2021: Lower courts hold that they lack jurisdiction over Axon’s challenge
The district court dismissed Axon's case, saying it lacked jurisdiction. The court held that when Congress created the FTC's administrative review procedures it implied that district courts did not have authority to review constitutional challenges to the agency before the agency considered those challenges through adjudication.
The United States Court of Appeals for the Ninth Circuit affirmed the lower court's ruling, dismissing Axon's constitutional challenge to the Federal Trade Commission's structure because the company had not raised the issue before the agency first. Axon appealed to the U.S. Supreme Court on July 20, 2021.[10][11]
January 2020: Axon Enterprises Inc. files complaint against the FTC's adjudication procedures
Axon Enterprises Inc. on January 3, 2020, filed a complaint in the United States District Court for the District of Arizona arguing that the FTC’s adjudication procedures vest the agency and its administrative law judges (ALJs) "with the powers of prosecutor, judge, and jury in violation of the Due Process and Equal Protection guarantees of the U.S. Constitution.”[12][13]
Axon, a police equipment manufacturer, filed the complaint in response to a December order from the FTC blocking the company’s acquisition of Vievu LLC, a competing manufacturer of police body cameras. The FTC claimed in part that Axon’s acquisition of Vievu eliminated competition in the police body camera market. Axon contested the claim and argued that the in-house adjudication procedures used by the FTC to pursue the action are unconstitutional because they subject the company to a “biased administrative proceeding with a preordained result.”[12][13]
Axon claims that the ALJs of the FTC do not serve as neutral decision makers. Instead, the company argues that the ALJs jointly act as prosecutor, judge, and jury in adjudication proceedings.[12][13] The FTC had not commented on the case as of January 18, 2020.
See also
External links
Footnotes
- ↑ Federal Trade Commission, "Our History," accessed April 9, 2018
- ↑ The New York Times, "Trump Fires Democrats on Federal Trade Commission," March 18, 2025
- ↑ United States District Court for the Northern District of Illinois Eastern Division, "Memorandum of Law in Support of Walmart Inc.'s Motion to Dismiss," August 29, 2022
- ↑ 4.0 4.1 4.2 4.3 JD Supra, "The FTC Expands Section 5 Enforcement Efforts With Potentially Broad Implications," July 12, 2021
- ↑ 5.0 5.1 5.2 5.3 Washington Examiner, "Democratic-controlled FTC votes to expand regulatory powers," July 1, 2021
- ↑ Federal Trade Commission, "Statement of Enforcement Principles Regarding 'Unfair Methods of Competition' Under Section 5 of the FTC Act," August 13, 2015
- ↑ Federal Trade Commission, "Statement of Chair Lina M. Khan Joined by Commissioner Rohit Chopra and Commissioner Rebecca Kelly Slaughter on the Withdrawal of the Statement of Enforcement Principles Regarding “Unfair Methods of Competition” Under Section 5 of the FTC Act," July 1, 2021
- ↑ Federal Trade Commission, "Dissenting Statement of Commissioner Christine S. Wilson," July 1, 2021
- ↑ Oyez, "Axon Enterprise, Inc. v. Federal Trade Commission," accessed November 8, 2022
- ↑ CASETEXT, "Axon Enter. v. Fed. Trade Comm'n," January 28, 2021
- ↑ U.S. Supreme Court, "Axon Enterprise, Inc. v. Federal Trade Commission Petition for a writ of certiorari," July 20, 2021
- ↑ 12.0 12.1 12.2 The National Law Review, "Axon Sues FTC Over Use of Administrative Adjudication in Merger Investigations," January 15, 2020
- ↑ 13.0 13.1 13.2 The National Law Review, "Company Sues to Hold the FTC and Its Merger Review Process Unconstitutional," January 13, 2020
