In 2020, a biotechnology company named Illumina, Inc., acquired Grail, Inc., the developer of an early-detection cancer test. The Federal Trade Commission (FTC) investigated the merger, conducted adversarial adjudicatory proceedings, and concluded that the merger could substantially lessen competition in the relevant market for research and development of early-stage cancer testing, which would potentially inhibit the creation of effective and affordable medical technologies. The FTC accordingly issued a cease-and-desist order requiring the companies to unwind the merger.
In a petition for review of the FTC’s order filed in the Fifth Circuit, the companies argue that a statutory provision protecting FTC Commissioners from being removed without good cause unconstitutionally curtails the President’s authority to execute federal law and that the FTC’s adjudicatory proceedings violated due process because they were conducted within the same agency that had investigated the case.
Public Citizen filed an amicus brief urging the court to deny the petition for review. The brief explains that a 1935 Supreme Court opinion, Humphrey’s Executor v. United States, considered and rejected the same constitutional challenge to the FTC Commissioners’ tenure protections that the companies have raised. Moreover, even if the Supreme Court were to overrule Humphrey’s Executor in the future, such a ruling would not invalidate the challenged FTC order because the companies have not shown that the agency would have acted differently had its Commissioners been subject to at-will removal by the President. As for due process, the amicus brief explains that the Supreme Court has long held that Congress’s decision to repose investigative and adjudicatory authority within a single agency does not violate due process, absent evidence that the combination of functions leaves the agency incapable of impartial adjudication. The companies here have produced no evidence suggesting that FTC adjudicators are institutionally biased against regulated parties as a general matter or that the Commissioners who issued the challenged order displayed any bias in this particular case.