Supreme Court Curbs FTC Powers: AMG Capital and Axon
Two recent Supreme Court rulings—FTC v. AMG Capital Management (2021) and Axon Enterprise v. FTC (2023)—respectively curtailed the FTC's ability to obtain equitable monetary relief and opened the door to early constitutional challenges to the agency's structure, weakening enforcement tools and inviting further attacks on the FTC's independence.
The Supreme Court has delivered two significant blows to the FTC's enforcement powers in recent terms. In FTC v. AMG Capital Management (April 2021), the Court held 9–0 that Section 13(b) of the FTC Act does not authorize the agency to seek equitable monetary relief such as disgorgement or restitution in federal court. This ruling stripped the FTC of its most powerful tool to return ill-gotten gains to consumers defrauded by corporations. The case involved Scott Tucker, a payday lending mogul who had bilked consumers out of hundreds of millions; the government sought disgorgement under Section 13(b), but the Court ruled that the text of the statute only permits injunctive relief. As a result, the FTC must now rely on the slower administrative process and narrower statutory routes to recover money for victims—a change that has already reduced the agency's ability to deter corporate misconduct.
Then, in Axon Enterprise v. FTC (June 2023), the Court held 9–0 that companies subject to FTC administrative proceedings may challenge the agency's constitutionality—specifically the structure of its administrative law judges and the for-cause removal protections for commissioners—in federal district court without first exhausting the administrative process. While the ruling was procedural, it gives litigants a faster path to challenge the FTC's institutional design, potentially destabilizing pending enforcement actions and setting the stage for structural attacks. Some critics of the FTC have already used Axon to question agency legitimacy. Defenders argue that preserving the FTC's independence from presidential pressure is essential for rigorous antitrust enforcement, especially in an era of concentrated corporate power. The next wave of litigation could target the very existence of for-cause removal for FTC commissioners, which has been a cornerstone of the agency's independence since its creation.
The humanitarian alternative
Congress can restore functional independence by passing the Independent Agency Protection Act, which would codify for-cause removal requirements for all commissioners of the Federal Trade Commission, Securities and Exchange Commission, Federal Communications Commission, and similarly situated independent agencies. This statute should also mandate that removals require a written statement of cause subject to de novo review in federal court. Additionally, Congress should strengthen agency whistleblower protections and require that any commission vacancy be filled within 180 days to prevent the administration from leaving agencies headless as a de facto removal tactic. These reforms would preserve the separation of powers without impairing legitimate presidential oversight.
Falsifiable predictions
What this entry claims will happen, and what data would prove it wrong. The Reckoner revisits these against current reality.
- Within 12 months, President Trump will remove at least 3 FTC commissioners and replace them with appointees who have publicly opposed merger enforcement.
- Consumer and antitrust enforcement actions by the FTC will drop by at least 30% compared to 2025 within 18 months of the ruling.
Original source — excerpted
news Politics: SCOTUS's long-sought FTC ruling has a Fed-shaped hole"This week, Emily Bazelon, David Plotz, and guest host Ruth Marcus discuss this week’s momentous Supreme Court rulings. The FTC/Slaughter case overturns nearly..."