Yost Backs Kroger in Challenge of FTC Tribunal

(COLUMBUS, Ohio) - Ohio Attorney General Dave Yost is siding with Kroger in challenging the constitutionality of the Federal Trade Commission's administrative proceedings for the Kroger-Albertsons merger.

In an amicus brief filed in the U.S. District Court for the Southern District of Ohio, Yost and 11 other state attorneys general support Kroger's legal argument that a tribunal of administrative law judges at the FTC violates the Constitution's separation of powers.

"The FTC's judges are part of the executive branch, and that means they're supposed to be subject to removal by the president," Yost said. "Their multilayered protections from removal undermine the president's authority and violate the constitution."

Kroger sued the FTC in August over an in-house administrative complaint the FTC filed to block a merger between Kroger and Albertsons. In their brief, Yost and his counterparts support Kroger in arguing that the removal protections for the FTC's administrative law judges overseeing the proceedings violate Article II of the U.S. Constitution.

The Constitution generally gives the president unrestricted power to remove executive branch officers, the brief says. Although the FTC's administrative law judges fall under the executive branch, they are shielded from presidential removal and "sit outside the three-branch structure like part of a 'headless fourth branch of government,'" the filing says.

Yost contends that such an arrangement is unconstitutional, meaning the FTC's in-house adjudication of its claim against Kroger subjects the company to an unconstitutional proceeding. Joining Yost in the amicus brief are the attorneys general of Alabama, Georgia, Iowa, Louisiana, Montana, Nebraska, Oklahoma, South Carolina, Tennessee, Texas and West Virginia.

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