Axon Enterprise, Inc. v. Federal Trade Commission, Brief of Separation of Powers Clinic at Antonin Scalia Law School as Amicus Curiae in Support of Petitioner

Abstract

This Court should reverse the Ninth Circuit’s decision barring Axon from immediately challenging the dual-layer, for-cause removal protections applicable to Federal Trade Commission ALJs. Allowing Axon to bring its challenge to an Article III court without exhausting a constitutional challenge against the tenure protections before the commission itself would not only ensure the availability of meaningful judicial review and meaningful relief, but would also help to maintain consistency with this Court’s removal protection precedents and encourage parties to bring removal protection claims.

Keywords: Judicial review, Separation of powers, Administrative law, ALJ, Removal Power, Unitary Executive, FTC

JEL Classification: K00, K1, K10, K23, K4