On March 20, the Fifth Circuit Court of Appeals held that the administrative adjudication of deceptive advertising claims by the Federal Trade Commission (FTC) violates the constitutional separation of powers, which grants exclusive judicial authority to Article III courts. Without deciding on the merits of the FTC’s deceptive advertising argument, the court concluded in Intuit v. FTC that the FTC must argue its claims in federal court, not in front of an in-house administrative law judge (ALJ).
FTC Administrative Adjudication Faces Constitutional Limits
This case extends the Supreme Court’s reasoning in Jarkesy, which held unconstitutional the Securities and Exchange Commission’s (SEC) use of ALJs to adjudicate securities fraud claims. Although the Intuit court’s ruling is limited to deceptive advertising cases, Jarkesy and Intuit raise significant doubt as to the FTC’s ability to issue administrative cease-and-desist orders under the FTC Act.
