Is FTC Administrative Litigation Constitutional? 

Axon and Jarkesy have renewed scrutiny of the constitutionality and fairness of FTC’s administrative litigation.  For example, the President cannot remove Administrative Law Judges nor FTC Commissioners, and FTC Commissioners both vote to issue the complaint and decide its merits in proceedings.  Parties before the DOJ-Antitrust Division, on the other hand, go directly before an Article III judge, and avoid administrative litigation altogether.

This panel, featuring the former FTC Acting Chairman, Commission advisors, and administrative law experts, discussed these and other constitutional challenges to FTC’s administrative litigation.  If the courts ultimately uphold constitutionality, is Congressional reform warranted?  Should FTC’s administrative tribunal be abolished altogether?  Or are internal process reforms sufficient to afford fairer process?

Keith Klover’s article, “Three Options for Reforming Part 3 Administrative Litigation at the Federal Trade Commission,” as referenced in the discussion.