Major public company moves to dismiss Federal Trade Commission enforcement suit for lack of constitutional authority

Client(s) Major public company

Jones Day moved to dismiss an FTC suit against a major public company on the ground that the FTC lacks constitutional authority to sue in federal court for monetary or injunctive relief. The Supreme Court in 1935 upheld the FTC's status as an independent agency shielded from Presidential removal on the rationale that the agency as it then existed did not exercise any executive power. But the power to file suit in federal court for monetary or injunctive relief—which Congress subsequently granted the FTC in the 1970s—is quintessential executive power, as the Supreme Court itself emphasized in 2020. Jones Day thus contends that it was unconstitutional for Congress to grant the independent FTC such executive litigation powers. Jones Day further contends that the proper remedy is to declare the litigation powers void and dismiss the suit, because invalidating the FTC's removal protections instead would be contrary to well-established severability principles.