ANALYSIS: 5th Cir.'s Stand on ALJs May Spell Trouble for the FTC

Over the past few years, federal courts have expressed a growing skepticism about administrative agencies, their rule-making authority, and their enforcement proceedings. In a string of recent cases, for example, the Supreme Court has reasoned that long-standing agency practices are either unauthorized by the underlying federal statute (as in AMG Capt’l Mgmt. LLC v. FTC) or in outright violation of the Constitution (as in Lucia v. SEC).

The latest case to invalidate agency enforcement, the Fifth Circuit’s May 18 opinion in Jarkesy v. SEC, has the potential to greatly impact the Federal Trade Commission—along with other agencies ...