Case: 23-60167 Document: 139 Page: 1 Date Filed: 06/12/2023
`
`No. 23-60167
`
`
`In the United States Court of Appeals
`for the Fifth Circuit
`
`
`ILLUMINA, INC. AND GRAIL, INC.,
`Petitioners,
`
`
`v.
`
`FEDERAL TRADE COMMISSION,
`Respondent.
`
`
`
`Petition for Review of
`an Order of the Federal Trade Commission
`
`
`BRIEF OF AMICUS CURIAE
`THE COMMITTEE FOR JUSTICE IN SUPPORT OF PETITIONERS
`
`
`
`Curt Levey
`The Committee for Justice
`1629 K Street, N.W., Suite 300
`Washington, DC 20006
`(202) 270-7748
`clevey@committeeforjustice.org
`
`John M. Reeves
` Counsel of Record
`REEVES LAW LLC
`7733 Forsyth Blvd., Suite 1100–
`#1192
`St. Louis, MO 63105
`(314) 775-6985
`reeves@appealsfirm.com
`
`
`
`
`
`
`
`Attorneys for amicus curiae The Committee for Justice
`
`
`
`
`No. 23-60167
`
`
`In the United States Court of Appeals
`for the Fifth Circuit
`
`
`ILLUMINA, INC. AND GRAIL, INC.,
`Petitioners,
`
`
`v.
`
`FEDERAL TRADE COMMISSION,
`Respondent.
`
`
`
`Petition for Review of
`an Order of the Federal Trade Commission
`
`
`BRIEF OF AMICUS CURIAE
`THE COMMITTEE FOR JUSTICE IN SUPPORT OF PETITIONERS
`
`
`
`Curt Levey
`The Committee for Justice
`1629 K Street, N.W., Suite 300
`Washington, DC 20006
`(202) 270-7748
`clevey@committeeforjustice.org
`
`John M. Reeves
` Counsel of Record
`REEVES LAW LLC
`7733 Forsyth Blvd., Suite 1100–
`#1192
`St. Louis, MO 63105
`(314) 775-6985
`reeves@appealsfirm.com
`
`
`
`
`
`
`
`Attorneys for amicus curiae The Committee for Justice
`
`
`
`
`Case: 23-60167 Document: 139 Page: 2 Date Filed: 06/12/2023
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`SUPPLEMENTAL STATEMENT OF INTERESTED PERSONS
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` Pursuant to Local Rule 29.2, the Committee for Justice certifies
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`that—in addition to the entities and persons identified in the
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`certificates of interested persons contained in the brief of Illumina and
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`Grail and all amicus briefs submitted up to this point, the following
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`persons have an interest in the outcome of this case. These disclosures
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`are made to assist the judges of this Court in evaluating the possibility
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`of disqualification or recusal.
`
`1. The Committee for Justice, amicus curiae.
`
`2. John M. Reeves, counsel for amicus curiae.
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`3. Curt Levey, counsel for amicus curiae.
`
` The Committee for Justice further declares that it is a non-profit
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`corporation with no parent companies, subsidiaries, or affiliates.
`
`
`
`Dated: June 12, 2013
`
`
`
`/s/ John M. Reeves
`
`
`
`
`
`
`
`
`
`
`
`
`2
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`
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`Case: 23-60167 Document: 139 Page: 3 Date Filed: 06/12/2023
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`TABLE OF CONTENTS
`
`Supplemental Statement of Interested Persons ....................................... 2
`Table of Contents ...................................................................................... 3
`Table of Authorities ................................................................................... 5
`Interest of Amicus Curiae ......................................................................... 8
`Introduction and Summary of the Argument ........................................... 9
`Argument ................................................................................................. 12
`I. The for-cause requirements governing the removal of FTC
`Commissioners violate Article II of the Constitution, and
`this Court can invalidate them—along with the FTC’s
`cease-and-desist order—without contradicting Humphrey’s. ..... 12
`A. At the time of Humphrey’s, the FTC did not possess
`executive, prosecutorial powers. ............................................. 15
`B. In 1938, the Wheeler-Lea Act unlawfully vested the FTC
`with executive prosecutorial authority, and Congress
`unconstitutionally strengthened this authority in the
`1970s. ...................................................................................... 22
`II. The modern FTC is a highly political entity vested with
`prosecutorial authority that must be subject to full control
`by the Executive Branch under Article II of the
`Constitution. ................................................................................. 27
`A. The FTC has abandoned any pretense of being a
`disinterested group of nonpolitical, enlightened experts. ...... 27
`B. The FTC’s “culture of consent” has greatly harmed
`businesses engaged in legitimate competitive behavior,
`making it all the more urgent to ensure the FTC is
`subject to full control by the executive branch. ...................... 31
`
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`3
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`Case: 23-60167 Document: 139 Page: 4 Date Filed: 06/12/2023
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`Conclusion ............................................................................................... 34
`Certificate of Service ............................................................................... 35
`Certificate of Compliance ........................................................................ 35
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`4
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`Case: 23-60167 Document: 139 Page: 5 Date Filed: 06/12/2023
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`TABLE OF AUTHORITIES
`
`Cases
`AMG Capital Mgmt., LLC v. Fed. Trade Com’n,
`141 S.Ct. 1341 (2021) ......................................................................... 26
`Axon Enter., Inc. v. Fed. Trade Com’n,
`143 S.Ct. 890 (2023) ........................................................................... 14
`Fed. Trade Com’n v. Balme,
`23 F.2d 615 (2d Cir. 1928) ................................................................. 17
`Federal Trade Com’n v. Hoboken White Lead & Color Works, Inc.,
`67 F.2d 551 (2d Cir. 1933) ................................................................. 19
`Humphrey’s Ex’r v. United States,
`295 U.S. 602 (1935) .................................................................... passim
`In re Application of U.S. Senate Permanent Subcommittee on
`Investigations,
`655 F.2d 1232 (D.C. Cir. 1981) .......................................................... 20
`Morrison v. Olson,
`487 U.S. 654, (1988) ........................................................................... 13
`Myers v. United States,
`272 U.S. 52 (1926) ........................................................................ 12, 13
`Selia Law LLC v. Consumer Fin. Protection Bureau,
`140 S.Ct. 2183 (2020) ............................................................. 10, 13, 14
`U.S. v. St. Regis Paper Co.,
`355 F.2d 688 (2d Cir. 1966) ................................................... 24, 25, 32
`Statutes
`15 U.S.C. § 41 (2018) ........................................................................... 9, 13
`15 U.S.C. § 45 (1934) ......................................................................... 16, 17
`
`
`
`5
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`Case: 23-60167 Document: 139 Page: 6 Date Filed: 06/12/2023
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`15 U.S.C. § 45 (1935) ............................................................................... 17
`15 U.S.C. § 45(b) (1940) ........................................................................... 23
`15 U.S.C. § 45(c) (1940) ........................................................................... 23
`15 U.S.C. § 45(c) (2018) ..................................................................... 16, 17
`15 U.S.C. § 45(g) (1940) ........................................................................... 23
`15 U.S.C. § 45(g) (2018) ........................................................................... 16
`15 U.S.C. § 45(l) (1940) ..................................................................... 23, 24
`15 U.S.C. § 45(l) (2018) ........................................................................... 16
`15 U.S.C. § 53b(b) (2018) ......................................................................... 26
`15 U.S.C. § 56 (1940) ............................................................................... 24
`15 U.S.C. § 56(a) (2018) ........................................................................... 16
`2 U.S.C. § 288d(a) (2018) ......................................................................... 20
`Trans-Alaska Pipeline Authorization Act, Pub. Law 93-153, November
`16, 1973, 87 Stat 576 ......................................................................... 26
`U.S. Const. art. II, § 1, cl. 1 ..................................................................... 12
`Rules
`Fed. R. App. P. 29(a)(2) ............................................................................. 8
`Fed. R. App. P. 29(a)(4)(E) ........................................................................ 8
`Other Authorities
`Christine S. Wilson, Marxism and Critical Legal Studies Walk into the
`FTC: Deconstructing the Worldview of the Neo-Brandeisians,
`FTC (April 8, 2022), bit.ly/3IXF0WY ................................................. 29
`
`
`
`6
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`Case: 23-60167 Document: 139 Page: 7 Date Filed: 06/12/2023
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`Corbin K. Barthold, Khan’s Crusade,
`City Journal (June 22, 2022), bit.ly/3oOiVn1 ................................... 28
`Douglas A. Ginsburg & Joshua D. Wright, Antitrust Settlements: The
`Culture of Consent,
`1 William E. Kovacic: An Antitrust Tribute 177 (2012) ................... 32
`Fox Business Network, Break Up Amazon as a Monopoly?,
`YouTube (June 23, 2017), bit.ly/3N2tF9w ........................................ 28
`H. Thomas Austern, Five Thousand Dollars a Day,
`51 Ky. L.J. 481 (1963) ............................................................ 18, 21, 23
`Josh Sisco, An Agitator Disrupts an Antitrust Garden Party,
`The Information (April 12, 2022), theinformation.com/articles/an-
`agitator-disrupts-an-antitrust-garden-party .................................... 29
`Joshua D. Wright & Douglas A. Ginsburg, The Economic Analysis of
`Antitrust Consents,
`46 Eur. J. of Law and Econ. 245 (2018)............................................. 32
`Peter C. Ward, Restitution for Consumers Under the Federal Trade
`Com’n Act: Good Intentions or Congressional Intentions?,
`4 Am. U. Law Rev. 1139 (1992) ......................................................... 19
`Philip Elman, Admin. Reform of the Federal Trade Comm’n,
`59 Geo. L. J. 777, 781 (1971).................................................. 15, 21, 27
`Robert H. Bork, The Antitrust Paradox: A Policy at War with Itself
`(1978) .................................................................................................. 29
`William S. Doenges, Present Enf’t of FTC Clayton Act Orders Issued
`Prior to the Adoption of the Finality Act,
`3 Tulsa L.J. 180 (1966) .................................................... 16, 17, 18, 19
`Zephyr Teachout & Lina Khan, Market Structure and Political Law: A
`Taxonomy of Power,
`9 Duke J. of Const. L. & Pub. Pol’y 37 (2014) ................................... 28
`
`
`
`7
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`Case: 23-60167 Document: 139 Page: 8 Date Filed: 06/12/2023
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`INTEREST OF AMICUS CURIAE1
`
` The Committee for Justice (CFJ) is a non-profit legal and policy
`
`organization founded in 2002. It is dedicated to preserving both the
`
`Constitution’s limits on governmental power and its separation of
`
`powers. Central to that mission is ensuring that the federal courts push
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`back against, rather than defer to, administrative agencies when they
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`exceed their constitutional role. Consistent with this mission, CFJ files
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`amicus briefs in key cases, supports constitutionalist nominees to the
`
`federal judiciary, and educates the American public and policymakers
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`about the proper roles of our federal courts and administrative agencies.
`
`This case, challenging the for-cause removal provisions for the
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`commissioners of the Federal Trade Commission (FTC), represents one
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`of the most important separation-of-powers challenges brought in the
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`last several decades. Consequently, CFJ has a strong interest in
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`demonstrating to this Court why the FTC’s current structure is
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`unconstitutional.
`
`
`1 In accordance with Fed. R. App. P. 29(a)(2), all parties have
`consented to the filing of this brief. Pursuant to Fed. R. App. P.
`29(a)(4)(E), no party’s counsel authored this brief in whole or in part,
`and no party, party’s counsel, or other person—besides amicus curiae
`and its counsel—contributed money that was intended to fund
`preparing or submitting this brief.
`8
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`Case: 23-60167 Document: 139 Page: 9 Date Filed: 06/12/2023
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`INTRODUCTION AND SUMMARY OF THE ARGUMENT
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` The Constitution divides our government into three branches—the
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`legislative branch, the executive branch, and the judicial branch.
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`Enforcement of our laws is vested with the executive branch, and the
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`executive branch alone. There is no “fourth branch” consisting of an
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`administrative state that enforces the laws separate from the executive
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`branch. Yet that is exactly what the FTC is today—an unaccountable
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`law enforcement agency outside the executive branch. The for-cause
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`removal provisions of the Federal Trade Commission Act prevent the
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`President, as the head of the executive branch, from exercising the
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`fullness of his office as he cannot dismiss its commissioners in the event
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`of a policy disagreement. See 15 U.S.C. § 41 (2018). For decades, the
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`FTC has exercised this executive authority independent of the
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`President due to the Supreme Court rejecting a separation-of-powers
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`constitutional challenge to this for-cause removal provisions in
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`Humphrey’s Ex’r v. United States, 295 U.S. 602 (1935). But the
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`Supreme Court has greatly narrowed Humphrey’s in the years since it
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`was handed down, to the extent that today the Court’s holding only
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`applies to the FTC as it existed in 1935. See Selia Law LLC v.
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`
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`9
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`Case: 23-60167 Document: 139 Page: 10 Date Filed: 06/12/2023
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`Consumer Fin. Protection Bureau, 140 S.Ct. 2183, 2200 n.4 (2020). A
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`historical analysis of the FTC’s actual authority in 1935 demonstrates
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`that it was a far different creature from what exists today in terms of
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`its executive enforcement powers, and that Humphrey’s does not
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`prohibit this Court from declaring the FTC as it exists today to be
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`unconstitutional.
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` For all of its bombast, the FTC as it existed from 1914 until 1938—
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`that, is, until three years after the Court handed down Humphrey’s—
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`was weak when it came to enforcing its own decisions. So weak was it
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`that it is difficult—if not impossible—to ascribe to it the notion of
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`prosecutorial authority that it would subsequently come to possess.
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`During its entire existence, the FTC has had the authority -to bring
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`defendants before it in an administrative setting to determine whether
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`it should issue a cease-and-desist order against them for alleged
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`anticompetitive behavior. But before 1938, the penalties that attached
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`to violating such cease-and-desist orders were practically nonexistent.
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`Such orders only prohibited future conduct, and did not penalize any
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`prior conduct. But even more critically, cease-and-desist orders were
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`not, of themselves, considered final and enforceable. If a defendant was
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`10
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`Case: 23-60167 Document: 139 Page: 11 Date Filed: 06/12/2023
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`found to have violated a cease-and-desist order, the FTC had to petition
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`a federal appellate court for a ruling to make the cease-and-desist order
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`final and enforceable. And even if the federal appellate court did so, this
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`ruling could have no retroactive effect upon the defendant’s conduct. It
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`was only if the defendant again violated the cease-and-desist order that
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`the FTC could ask the appellate court to punish the defendant. And
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`even then, the punishment meted out by the appeals court was limited
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`to finding the defendant was in contempt of court.
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` This is a far cry from the prosecutorial authority that the FTC would
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`later come to possess. Prosecutorial authority implies having the
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`authority to seek a particular enforceable punishment against a
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`defendant. But the FTC at the time of Humphrey’s had no authority to
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`do this. While it could institute an administrative proceeding against a
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`defendant to obtain a cease-and-desist order, these orders were of
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`themselves unenforceable and did not carry any penalties with them.
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`The only true punishment that could be imposed upon a defendant was
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`the common law contempt of court punishment. This was less for
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`violating the FTC’s order than it was for disrespecting the authority of
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`the court.
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`11
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`Case: 23-60167 Document: 139 Page: 12 Date Filed: 06/12/2023
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`
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`It was only after the Court handed down Humphrey’s that Congress
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`unlawfully vested the FTC with executive prosecutorial authority. The
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`FTC now uses that authority more aggressively than ever to prosecute
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`what it perceives to be violations of antitrust law, all without any
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`ability of the executive branch to supervise it. Even worse, its current
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`chairwoman has admitted that the agency is inherently political in
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`nature and not an apolitical group of supposedly disinterested experts.
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`Given this, the FTC’s as it currently exists violates Article II, which
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`vests prosecutorial and all other executive authority with the President,
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`and should be struck down. And because the FTC as it existed in 1935,
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`at the time of Humphrey’s, did not exercise any form of executive
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`prosecutorial authority, this Court can do so without contradicting
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`Humphrey’s.
`
`ARGUMENT
`I. The for-cause requirements governing the removal of FTC
`Commissioners violate Article II of the Constitution, and this Court
`can invalidate them—along with the FTC’s cease-and-desist order—
`without contradicting Humphrey’s.
`
` Our Constitution vests all executive authority in the President of the
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`United States. U.S. Const. art. II, § 1, cl. 1; Myers v. United States, 272
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`U.S. 52, 117 (1926). This executive authority includes prosecutorial
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`
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`12
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`Case: 23-60167 Document: 139 Page: 13 Date Filed: 06/12/2023
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`powers. See Morrison v. Olson, 487 U.S. 654, 691 (1988). Since one man
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`cannot perform these duties alone, the President may select
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`subordinate officials to assist him in this task. Myers, 272 U.S. at 117.
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`But these subordinate officials must remain accountable to him, given
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`that they exercise his authority. Selia, 140 S.Ct. at 2197. Accordingly,
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`the President must be unhindered in his authority to remove such
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`officials, as otherwise he would be unable to execute the law in the
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`manner he sees fit and according to his policy preferences. See Myers,
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`272 U.S. at 164 (“[T]o hold otherwise would make it impossible for the
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`President, in case of political or other differences with the Senate or
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`Congress, to take care that the laws be faithfully executed.”).
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` Despite this principle—which is fundamental to the separation-of-
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`powers under our Constitution—in 1935, the Supreme Court rejected an
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`Article II constitutional challenge to the Federal Trade Commission
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`Act’s provision that the President may only remove the FTC’s
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`commissioners for cause. Humphrey’s, 295 U.S. at 619-32. Currently
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`codified at 15 U.S.C. § 41 (2018), this provision prevented (and still
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`prevents) the President from removing FTC commissioners due to policy
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`disagreements over how to implement antitrust law. Humphrey’s, 295
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`
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`13
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`Case: 23-60167 Document: 139 Page: 14 Date Filed: 06/12/2023
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`U.S. at 619-20. The Court justified upholding the for-cause removal
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`protections on the ground that the FTC’s “duties are neither political
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`nor executive, but predominately quasi judicial and quasi legislative.”
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`Id. at 624. In more recent years, the Court has not hesitated to
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`broadcast its buyer’s remorse over much of the rationale it gave for this
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`holding. See, e.g., Selia, 140 S.Ct. at 2198 (2020) (“Rightly or wrongly,
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`the Court viewed the FTC (as it existed in 1935) as exercising ‘no part
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`of the executive power.’”) (quoting Humphrey’s, 295 U.S. at 628). It has
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`strongly suggested in dicta that its conclusion “that the FTC did not
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`exercise executive power has not withstood the test of time.” Id. at 2198
`
`n.2.
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`
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`In any event, Humphrey’s remains binding case law, but confined
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`only to the FTC’s powers as they existed in 1935. See Selia Law, 140
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`S.Ct. at 2200 n.4. There is no question that today’s FTC utilizes
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`prosecutorial powers—an executive function—even in its administrative
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`proceedings. See Axon Enter., Inc. v. Fed. Trade Com’n, 143 S.Ct. 890,
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`902 (2023) (“[The FTC] houses (and by design) both prosecutorial and
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`adjudicative activities.”). But an examination of the FTC’s actual
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`powers as they existed in 1935 reveals—surprisingly—that the FTC did
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`14
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`Case: 23-60167 Document: 139 Page: 15 Date Filed: 06/12/2023
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`not, in fact, have what could be considered prosecutorial authority.
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`From 1914 to 1938—that is, until three year after Humphrey’s—the
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`FTC was a surprisingly weak agency in terms of its actual enforcement
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`powers. This is especially so if viewed in the context of the subsequent
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`prosecutorial enforcement powers that Congress would, post-
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`Humphrey’s, grant to it and that it uses today. This difference between
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`the FTC’s powers as they existed in 1935 and its powers as they exist
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`today is critical, for it means that this Court can easily invalidate the
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`for-cause removal provisions for FTC commissioners as violating Article
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`II without in any way discarding or contradicting Humphrey’s.
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`A. At the time of Humphrey’s, the FTC did not possess executive,
`prosecutorial powers.
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` As surprising as it may seem today, the FTC “was conceived [in
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`1914] not as a prosecutorial or enforcement body, but as an expert
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`administrative tribunal vested with the responsibility for developing an
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`enlightened antitrust policy and given the tools to carry out that task.”
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`Philip Elman, Admin. Reform of the Federal Trade Comm’n, 59 Geo. L.
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`J. 777, 781 (1971). Certainly, it had many features we are familiar with
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`today. Then, as today, the FTC had the authority to bring
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`administrative proceedings against a defendant it believed had violated
`15
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`Case: 23-60167 Document: 139 Page: 16 Date Filed: 06/12/2023
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`antitrust law. Then, as today, if the defendant was found guilty of such
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`a violation, the FTC could issue a cease and desist order against the
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`defendant. Compare 15 U.S.C. § 45 (1934) with 15 U.S.C. § 45(c) (2018).
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`But that is where the similarities end. Today, a cease and desist order
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`is final and enforceable 60 days after entry unless—as in this case—
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`stayed pending review by a federal appellate court. 15 U.S.C. §§ 45(c),
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`45(g) (2018). Moreover, today a violation of a cease and desist order
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`carries with it a civil penalty of $10,000, and the FTC is authorized to
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`initiate proceedings in a federal district court to enforce this civil
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`penalty. 15 U.S.C. §§ 45(l)), 56(a) (2018). But in 1935 a very different
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`situation existed.
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`
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`In 1935, an FTC administrative enforcement action seeking a cease-
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`and-desist order carried consequences of a completely different nature
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`for defendants compared to the consequences of today. An FTC cease-
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`and-desist order, standing alone, was not enforceable as a matter of
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`law, and did not carry with it any penalty of any kind. Indeed, it was
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`not even considered to be “final” in the first place. See William S.
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`Doenges, Present Enf’t of FTC Clayton Act Orders Issued Prior to the
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`Adoption of the Finality Act, 3 Tulsa L.J. 180, 182 (1966) (“The cease
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`16
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`Case: 23-60167 Document: 139 Page: 17 Date Filed: 06/12/2023
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`and desist order had no practical efficacy at this point, nor did the order
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`become final within a specified number of days.”); 15 U.S.C. § 45 (1934);
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`Fed. Trade Com’n v. Balme, 23 F.2d 615, 618 (2d Cir. 1928) (joined by
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`Hand, J.) (“The statute does not impose any penalty for violation of the
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`[FTC’s] order . . . .”). If the FTC desired to make its cease-and-desist
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`order final and enforceable, it had to wait for the defendant to actually
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`violate the order. Then, it had to file an application with the relevant
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`circuit court of appeals to make the order enforceable. See 15 U.S.C. §
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`45 (1934). The circuit court would conduct a review of the proceedings
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`in a matter practically identical to how it reviews a defendant’s petition
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`challenging an enforcement order. Compare 15 U.S.C. § 45 (1934) with
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`15 U.S.C. § 45(c) (2018). If the circuit court sided with the FTC, it would
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`issue a final, enforceable judgment. See 15 U.S.C. § 45 (1935); see
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`Doenges, supra at 182-83. But even this final judgment implementing
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`the cease-and-desist order only applied prospectively. It did not punish
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`any conduct that had occurred prior to the circuit court’s entry of
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`judgment—neither the defendant’s original violation of antitrust law
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`that had led to the FTC action in the first place, nor the defendant’s
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`second violation of antitrust law following the cease-and-desist order.
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`17
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`Case: 23-60167 Document: 139 Page: 18 Date Filed: 06/12/2023
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`Id. at 183 (“No penalty attached to this second violation [that had led
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`the FTC to petition the circuit court for enforcement], other than the
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`entry of a decree enforcing the order.”). Only if the defendant continued
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`his illegal conduct after the circuit court entered its judgment—that is,
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`only if the defendant violated antitrust law a third time—could the FTC
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`seek to impose any actual punishment.2 Id.
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`
`2 This was known as the “three bites at the apple” rule. See H.
`Thomas Austern, Five Thousand Dollars a Day, 51 Ky. L.J. 481, 485
`(1963). It is worth quoting in full a summary of how this procedure
`worked, as demonstrates just how difficult and cumbersome it was for
`the FTC to attach any practical consequences—however small—to its
`administrative enforcement actions in 1935:
`
`
`Before any consequences attached to a violation
`of the [cease and desist] order it must have been
`reinforced by a judicial decree of enforcement. To
`obtain the enforcement decree in the court of
`appeals, a second violation had to be shown. This
`was done by the [FTC] again ordering an
`investigation appointing a hearing officer, and,
`usually, holding a hearing. If a violation was
`found, the [FTC] then sought enforcement in the
`court of appeals. No penalty attached to this
`second violation, other than the entry by the
`court of a decree enforcing the order. The order
`was thus still lacking in practical efficacy, but
`thereafter, contempt of court penalties could be
`imposed by a showing of another violation. This
`would, however, require still a third hearing
`before the agency as to any disputed factual
`18
`
`
`
`
`
`Case: 23-60167 Document: 139 Page: 19 Date Filed: 06/12/2023
`
` Even if the FTC succeeded in “punishing” a defendant for its third
`
`violation of antitrust law, the nature of this punishment differed in
`
`kind—not only in degree—from a civil (or criminal) monetary penalty or
`
`an injunction. It consisted only of being found in contempt of court,
`
`pursuant to the circuit court’s inherent powers to compel adherence to
`
`its orders, rather than of any statutorily-imposed punishment, and the
`
`court determined the nature of the punishment. See, e.g., Federal Trade
`
`Com’n v. Hoboken White Lead & Color Works, Inc., 67 F.2d 551, 554 (2d
`
`Cir. 1933) (finding the defendant in contempt and fining it $500 based
`
`on the court’s “inherent power . . . to administer punishment.”). More
`
`fundamentally, the contempt stemmed from having violated the order of
`
`the circuit court, and not the FTC’s original cease-and-desist order. This
`
`reflects how “[a]ny adverse consequences [due to violating a cease and
`
`desist order] . . . would come from the courts, not the [FTC].” Peter C.
`
`Ward, Restitution for Consumers Under the Federal Trade Com’n Act:
`
`Good Intentions or Congressional Intentions?, 4 Am. U. Law Rev. 1139,
`
`1148 (1992). In other words, the defendant was punished not so much
`
`question, and a review there of by the court of
`appeals.
`Doenges, supra at 182-83.
`
`
`
`19
`
`
`
`
`
`Case: 23-60167 Document: 139 Page: 20 Date Filed: 06/12/2023
`
`for his violation of antitrust law as he was for having refused to obey
`
`the circuit court’s authority.3 This differs fundamentally from a
`
`executive authority using its prosecutorial power to seek a fine, jail
`
`time, or an injunction against a defendant due to an alleged violation of
`
`the law.
`
` This procedure can be roughly compared with how the Senate can
`
`initiate civil contempt proceedings to compel compliance with its
`
`subpoenas or orders pursuant to the Ethics in Government Act. See 2
`
`U.S.C. § 288d(a) (2018). That Act explicitly authorizes the Senate to
`
`bring a civil suit in its own name to compel compliance with its
`
`subpoenas. Id. If an individual refuses to comply with a Senate
`
`subpoena, that legislative body may bring suit in a federal district court
`
`asking for a court order directing compliance. In re Application of U.S.
`
`Senate Permanent Subcommittee on Investigations, 655 F.2d 1232, 1238
`
`(D.C. Cir. 1981). If the district court issues an order mandating
`
`compliance, and the individual in question still refuses to cooperate, the
`
`Senate can file a motion to hold him in civil contempt. See id. Yet
`
`
`3 The circuit court’s judgment finalizing the cease-and-desist order
`was not an injunction, as the FTC lacked any authority to seek
`injunctive relief at this time.
`
`
`
`20
`
`
`
`Case: 23-60167 Document: 139 Page: 21 Date Filed: 06/12/2023
`
`nobody could possibly conclude from this scheme that in filing a suite to
`
`enforce a subpoena or in seeking a holding of contempt that the
`
`Senate—one part of our bicameral Legislative Branch under Article I—
`
`is exercising a form of prosecutorial power that is part of the executive
`
`branch. Merely seeking to hold somebody in civil contempt for failure to
`
`obey a court order is not enough, without more, to amount to an
`
`assertion of executive authority under Article II.
`
` The scheme in effect in 1935 reflects how the FTC, as originally
`
`created, was not meant to be a prosecutorial authority. See Elman,
`
`supra at 781. Rather, it was viewed as a body of enlightened experts
`
`whose cease-and-desist orders, as originally issued, would be merely
`
`“precatory admonition[s]” that “the business community would
`
`welcome” as a clarification on the types of activities that were and were
`
`not permitted under antitrust law. H. Thomas Austern, Five Thousand
`
`Dollars a Day, 51 Ky. L. J. 481, 483, 485 (1963). “What was plainly
`
`contemplated was general obedience, and resort to court review or
`
`enforcement procedures only in rare instances.” Id. at 485 n.13. But
`
`even in the “enforcement” context, the punishment meted out was not
`
`for violating any antitrust law, but for not obeying a court order.
`
`
`
`21
`
`
`
`Case: 23-60167 Document: 139 Page: 22 Date Filed: 06/12/2023
`
` Given this, it cannot be said that the FTC exercised any executive
`
`prosecutorial authority in 1935 when the Supreme Court decided
`
`Humphrey’s. Therefore, that case does not stand as a barrier to this
`
`Court declaring the for-removal provisions for FTC commissioners
`
`unconstitutional today, when the agency does, in fact, exercise such
`
`executive power.
`
` As demonstrated below, Congress would unconstitutionally vest the
`
`FTC with such executive power only three years after Humphrey’s,
`
`power which Congress only further strengthened—unlawfully—in the
`
`1970s.
`
`B. In 1938, the Wheeler-Lea Act unlawfully vested the FTC with
`executive prosecutorial authority, and Congress
`unconstitutionally strengthened this authority in the 1970s.
`
` So long as the FTC lacked any prosecutorial authority, it could be
`
`said that the Federal Trade Commission Act’s for-cause removal
`
`provisions for the FTC’s commissioners were constitutional as there was
`
`no risk they would interfere with the President’s executive authority to
`
`enforce the laws via prosecution. But this would soon change when
`
`Congress vested the FTC with executive prosecutorial authority. By
`
`vesting the FTC with this authority while still shielding its
`
`
`
`22
`
`
`
`Case: 23-60167 Document: 139 Page: 23 Date Filed: 06/12/2023
`
`commissioners from removal without cause by the President, Congress
`
`blatantly violated Article II of the Constitution.
`
`
`
`In 1938, Congress fundamentally altered the nature of the FTC’s
`
`powers by enacting the Wheeler-Lea Act. See Austern, supra at 485.
`
`Passed with little debate, this act “in amazingly casual fashion
`
`completely changed the method of enforcement [for the FTC’s cease and
`
`desist orders].” Id. This act made FTC cease-and-desist orders
`
`themselves final sixty days after entry, unless the defendant filed a
`
`petition for review with the relevant circuit court of appeals. 15 U.S.C.
`
`§§ 45(b), 45(g) (1940). If the defendant filed a petition for review, the
`
`order became final if and when the circuit court affirmed it, assuming
`
`the defendant declined to petition the Supreme Court for certiorari. 15
`
`U.S.C. §§ 45(c), 45(g) (1940). Even more critical “was the entire novel
`
`concept of punishment by civil penalty action.” Austern, supra at 485.
`
`For the first time, violation of a final FTC cease-and-desist order was
`
`made punishable by a civil penalty, specifically of $5,000. 15 U.S.C. §
`
`45(l) (1940). The FTC was to seek this penalty through the initiation of
`
`a civil lawsuit by the United States in federal distric
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