Ohio Attorney General Dave Yost is throwing his weight behind Kroger Co. in the ongoing legal tussle with the Federal Trade Commission (FTC) over its merger with Albertsons. Yost and 11 other state attorneys general have filed an amicus brief that contends the constitutional legitimacy of the FTC's use of administrative law judges in its proceedings.
In a move that draws a battle line between state authority and federal administrative processes, Yost has argued, "The FTC’s judges are part of the executive branch, and that means they’re supposed to be subject to removal by the president." This statement is from the amicus brief which also claims that the judges' "multilayered protections from removal" directly clash with the President's constitutional authority, as per the Ohio Attorney General's Office.
The core issue of this legal skirmish is the proposed merger between Kroger and Albertsons, which the FTC attempts to halt through its in-house administrative complaint. Yost's brief supports Kroger's standpoint, stating that the proceedings presided over by the FTC's administrative law judges are in violation of Article II of the U.S. Constitution, which delineates the president's power to remove executive officers.
The attorneys general are fixating on a constitutional interpretation that would see the FTC's administrative law judges as mavericks in the executive branch shielded from presidential oversight, which the brief describes them as "sit[ting] outside the three-branch structure like part of a ‘headless fourth branch of government.’" The implication is that Kroger is subject to what they believe is an unconstitutional process. This angle gains support from the attorneys general of states including Alabama, Georgia, and Texas, signaling a broad, if not entirely unified, front against the FTC's present method of adjudication.
