Explore All The Prompts
In this Prompt edition, we asked our experts to weigh in on the likely fallout from a case now pending before the U.S. Supreme Court:
Assume the prevailing wisdom is correct and the Supreme Court is likely to overturn Humphrey’s Executor v United States, in a few sentences, what are the practical implications for the FTC as an agency?
The Prompt
Answering antitrust challenges one question at a time
The Chamber has assembled a range of preeminent experts in the field of antitrust from across a wide political spectrum to offer timely views on key questions of antitrust law and policy. This group brings together senior enforcers spanning seven administrations, from both the Antitrust Division at the Department of Justice and the Federal Trade Commission.
One contributor pushed back on the premise of the question:
“SCOTUS may well not overturn Humphrey’sExecutor. The perils of overturning it are already apparent at the all-GOP FTC, as the Commission diverts valuable agency resources to pursuing censorship on behalf of the White House. The risk that an administrative agency would become an echo-chamber of like-minded ideology without the benefit of bipartisan discourse is not likely to be lost on the Court.”
And one contributor suggested that it could tie the FTC’s actions directly to presidential accountability:
“While the FTC would be less 'independent,' with greater Executive branch oversight, the President will now be responsible for its actions and accountable to voters.”
But the other experts speculated that an end to Humphrey’s Executor would mean the end of the FTC (or at least its competition functions) as we know it:
“We're in somewhat uncharted territory, but it would seem like the immediate impact is that instead of the five-member Commission, with the bipartisan split, that Congress mandated in 15 USC 41, we will likely have something very different: a three-member Commission appointed by the President, presumably from his own party, with two open seats. What's uncharted is what happens to the two open seats. By law, the FTC must have five seats, with no more than three Commissioners from the same political party. The practical effect of having a three-member Commission appointed by the President, with Commissioners easily dismissed by the President, could mean that the argument for having two U.S. governmental antitrust enforcers is weakened.”
“The more the FTC looks like an executive agency, the less there is need for a competition role for the agency.”
“If the Supreme Court overturns Humphrey’s Executor, the FTC will cease to be a bipartisan, independent agency and the original intent of the FTC will be diminished. As a result, there will be increasing pressure to merge the DOJ and FTC’s antitrust functions.”
“For better or worse, the FTC's days as an antitrust enforcement agency are numbered. When (not if) the Supreme Court holds that the President may fire FTC commissioners at will, the rationale will likely include the fact that today's FTC clearly exercises executive law-enforcement functions, not "quasi-judicial and quasi-legislative" functions (as the Supreme Court characterized the FTC of the 1930s in Humphrey's Executor). So the FTC will look even more like DOJ than it does today. Most of the traditional rationales for the U.S. continuing to operate two largely-overlapping antitrust enforcement agencies have long since fallen away as FTC administrative litigation became increasingly irrelevant, and as the FTC's institutional-expertise advantage vs. DOJ became less apparent. Once the FTC is held to be just another executive agency, the "independence" rationale for having two antitrust agencies will have fallen too. As fiscal deficits accumulate, even relatively small budgets like the FTC's will come under increasing scrutiny and will be hard to defend. I say all this with some sadness, as an FTC alum who has viewed the FTC as often the higher-performing of the two U.S. antitrust agencies. But what made the FTC different and at times superior—including the internal vetting of policies and cases by a bipartisan Commission and staff—is going away, and with it, ultimately, the Commission's antitrust mission itself. (The FTC's consumer protection mission could either be retained in a newer, smaller FTC, or transferred to another agency.)”
“One might reasonably question whether the modern FTC truly operates as an independent expert body that spans administrations, but overruling Humphrey’s Executor would eliminate any doubt. If each administration has the power to remove commissioners and appoint their successors, the distinction between the Antitrust Division and the Commission’s competition mission would turn principally on institutional cultures and the personal predilections of the various appointees, and the already thin justification for multiple agencies with parallel authority would be largely eliminated.”
“As a practical matter, the FTC and the DOJ would both be under total presidential control. As such, the justification for continuing the FTC’s antitrust authority would as a practical matter be greatly attenuated (the argument for continued Part III antitrust enforcement to allow “expert” development would be viewed as insubstantial, and subject to constitutional attack). I believe eventually the FTC would be stripped of its antitrust powers (the desire of the Commerce Committee to maintain antitrust oversight might prevent this, at least for a while, and perhaps for a long time – applied public choice analysis). Whether it retained its consumer protection authority (backed by excellent economists) would be a political question. Perhaps it could become the Federal Consumer Protection Agency (and perhaps pick up consumer protection powers of other bureaucracies, which would be a good thing).”
“The FTC will likely cease to function as a bipartisan agency and we will loose the benefits of dissenting/bipartisan views on matters. Even when Commissioners did not vote for a matter, their critique and advice typically resulted in a stronger or clearer complaint. Further, minority Commissioners may expose or check abusive practices within the agency, including through editorials. The FTC is also likely to become more responsive to political pressure as the Commissioners are now removable at will. Other than the policy study aspect and the role of its 6(b) authority, it will become difficult to see the purpose in having two antitrust agencies. Further, the FTC will be open to clear due process challenges given the FTC and DOJ’s differing burdens in obtaining injunctions in merger cases. As two executive agencies, they will not select what burden they would like.”
