Ohio Attorney General Dave Yost, along with 11 other Republican attorneys general, filed a brief in federal court in Cincinnati on Monday. They argue that the Federal Trade Commission’s attempt to block the merger between Kroger and Albertsons is unconstitutional.
If successful, their argument could limit the FTC’s ability to combat anticompetitive practices in various sectors. It would also impact the independent powers of other executive-branch agencies that rely on administrative law.
The argument from Yost and his colleagues aligns with Project 2025, a plan for a potential second Trump administration. Trump has been trying to distance himself from it.
Food giant
Yost’s office did not respond to questions, including whether facilitating grocery mega-mergers is a core function of the attorney general. In his statement, Yost said, “The FTC’s judges are part of the executive branch, and that means they’re supposed to be subject to removal by the president. Their multilayered protections from removal undermine the president’s authority and violate the constitution.”
The FTC released a report in March stating that large grocers like Kroger and Walmart engaged in schemes that inflated grocery prices during the pandemic. Prior to this, Kroger and Albertsons proposed a merger that would create a chain with 5,000 stores and 4,000 pharmacies, employing nearly 700,000 people across 48 states. The FTC sued to stop the merger in February, fearing it would reduce competition and raise prices.
Last month, Yost and three other attorneys general filed a friend-of-the-court brief to end the FTC’s intervention, arguing the merger would increase competition and benefit consumers. They listed chains like Costco, Sam’s Club, Aldi, and Whole Foods as part of the competitive field.
Sweeping challenge
On Monday, Yost and 11 colleagues filed a brief challenging the constitutionality of the FTC’s use of administrative law judges, claiming it violates the separation of powers. “This case arises from an administrative proceeding that defies the separation of powers,” they argue. They assert the FTC’s judges should be removable by the president.
Attorneys general from Alabama, Georgia, Iowa, Louisiana, Montana, Nebraska, Oklahoma, South Carolina, Tennessee, Texas, and West Virginia joined the brief. Their action could affect decades of administrative law rulings by agencies like the Environmental Protection Agency and the Securities and Exchange Commission.
Yost and his colleagues argue that the Supreme Court’s 1935 ruling in Humphrey’s Executor v United States does not apply to the FTC’s action against the Kroger-Albertsons merger. They believe the president should have the power to remove FTC commissioners.
Controversial ideas
Yost’s argument appears in Project 2025, a policy document for a potential second Trump term. The document proposes expanding presidential power and questions the need for the FTC. It suggests antitrust enforcement should be handled solely by the Department of Justice.
Project 2025 also includes proposals like prohibiting the federal government from calling abortion health care and reducing efforts to counter global warming.
Conundrum
Yost has previously fought against anticompetitive practices in other sectors, including lawsuits against pharmacy middlemen for raising drug prices. However, if his argument in the Kroger case succeeds, it could undermine efforts to regulate these practices.
The FTC recently filed a lawsuit accusing major health conglomerates of inflating insulin prices. This was filed as an administrative law proceeding within the FTC, a process Yost and his colleagues aim to end.
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