Federal Trade Commission v. Walmart Inc., Brief for Amicus Curiae Professor Jennifer L. Mascott in Support of Defendant’s Motion to Dismiss

Abstract

Congress has dramatically expanded the powers of the FTC since the time of Humphrey’s Executor in 1935. For example, the FTC can now seek extraordinary civil penalties and permanent injunctions in federal court, but the 1935 FTC had no such authority. These significant new powers are ones the Supreme Court has held can typically be exercised only by executive officers directly responsible to the President pursuant to his Article II supervisory authority. But FTC Commissioners are subject to statutory removal protections, insulating them from that direct presidential oversight.

Under Supreme Court precedent, the FTC can either exercise its core executive powers or it can enjoy its removal protections—but it cannot do both. This case thus implicates a developing area of law about how courts should address what scholars have titled “unconstitutional combinations” or “convergences,” where two statutory provisions independently would be constitutional under judicial precedent but are unconstitutional when operating together

Keywords: Separation of Powers, Constitutional Law, Administrative Law, Federal Trade Commission, FTC, Unitary Executive, Appointments Clause, Removal Power, Judicial Review, Commerce

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