#330: The FTC & FCC in Court

Tech Policy Podcast

TechFreedom

Technology

4.8 • 45 Ratings

🗓️ 12 October 2022

⏱️ 70 minutes

🔗️ Recording | iTunes | RSS

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Summary

Independent federal agencies sit awkwardly in our constitutional structure. When they engage in aggressive overreach, therefore, they should expect to see their actions challenged in court. This episode centers around two such challenges. In Axon v. FTC, a case the Supreme Court will hear this term, the plaintiff challenges the jurisdiction of the Federal Trade Commission’s internal tribunal. And in Consumers’ Research v. FCC, a set of cases currently in the federal courts of appeals, the petitioners challenge the Federal Communications Commission’s power to raise money without congressional oversight. Our guest is Trent McCotter, a partner with Boyden Gray & Associates and the director of the Separation of Powers Clinic at the C. Boyden Gray Center at Antonin Scalia Law School. He and host Corbin Barthold discuss Axon, Consumers’ Research, and the cases’ various implications for the separation of powers.

Transcript

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0:00.0	Federal government agencies sit awkwardly in our constitutional structure.
0:17.1	At its core, that structure is straightforward.
0:20.7	Congress, our first branch of government,
0:23.0	makes the laws. The president, who sits atop the second branch, implements those laws,
0:29.7	and the judiciary, the third branch, interprets the laws when disputes arise. Federal agencies,
0:41.9	weirdly, do all of this stuff. They issue rules of general application. They enforce the laws as well as their own rules, and many of them have their own
0:48.4	internal tribunals. It's not right to say that these agencies are simply part of the executive branch. The agencies
0:57.5	do more than just execute laws, and in any event, many of them, including the two will be discussing
1:03.5	today, are not accountable to the president for their actions. Nor will it do to say that agencies are a fourth branch of government.
1:14.3	Under our Constitution, there is no such thing. What is to be done about this derangement of our
1:22.5	constitutional order? That's a big question. One, we're certainly not going to resolve on today's show.
1:30.0	But this much is clear. When these agencies whose constitutional legitimacy is shaky,
1:38.2	engage in aggressive overreach, they should expect to see their actions challenged in court.
1:44.7	Today we're going to discuss two such legal challenges.
1:49.8	The cases involve two of the OG federal agencies, the Federal Trade Commission, and the Federal
1:56.3	Communications Commission.
1:58.6	They also involve two of the key encroachments agencies make on the functions of our government's first and third branches.
2:07.6	We'll take up the third branch case first. That one is Axon versus FTC, which is about when the FTC can and cannot use its internal administrative court.
2:21.4	Then we'll turn to the first branch case. That one is Consumers Research versus FCC.
2:28.6	And it's about whether Congress can delegate open-ended authority to the FCC to raise and spend money for telecommunications
2:36.4	access. This is the tech policy podcast. I'm Corbyn Barthold. Joining me today to discuss these two cases is
2:48.5	Trent McCotter. Trent is a partner with Boyden Gray and Associates,
	...

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