The Tension between Agency Authority and the Constitution

Abstract

This article analyzes current disputes over the FTC’s regulatory power within the context of recent Supreme Court rulings. It argues the FTC’s desire to drastically expand its regulatory authority over the United States economy will likely face challenges before the Supreme Court. Specifically, the agency’s recent rulemaking attempting to bar the use of noncompete agreements highlights the tension between the administrative impulse to expand executive power and the limits imposed by the constitutional principle of the separation of powers.

This discussion will proceed in four parts. First, I examine the Supreme Court doctrines which have emerged to protect the separation of powers from erosion through the excessive exercise of administrative power. Second, I discuss the FTC’s current intention to significantly expand the agency’s power. This section will focus heavily on the agency’s change of direction, particularly actions taken since the release of the agency’s November 2022 Policy Statement. Third, I consider the FTC’s clash with major questions of jurisprudence. Lastly, I explore the constitutional problems with the expansion of the FTC’s authority.