Ohio Attorney General Dave Yost is supporting Kroger in a legal challenge against the Federal Trade Commission’s (FTC) administrative proceedings concerning the Kroger-Albertsons merger. Yost, along with 11 other state attorneys general, filed an amicus brief in the U.S. District Court for the Southern District of Ohio.
Yost argues that the FTC's tribunal of administrative law judges violates the Constitution’s separation of powers. “The FTC’s judges are part of the executive branch, and that means they’re supposed to be subject to removal by the president,” Yost stated. “Their multilayered protections from removal undermine the president’s authority and violate the constitution.”
Kroger initiated a lawsuit against the FTC in August following an administrative complaint by the FTC aimed at blocking its merger with Albertsons. The brief supports Kroger's position that removal protections for these judges violate Article II of the U.S. Constitution.
According to the brief, "The Constitution generally gives the president unrestricted power to remove executive branch officers." It contends that although FTC's administrative law judges fall under this branch, they are insulated from presidential removal and thus exist outside traditional governmental structures, likened to a "headless fourth branch of government."
Yost maintains that this setup is unconstitutional and renders the FTC’s internal adjudication process against Kroger invalid. Attorneys general from Alabama, Georgia, Iowa, Louisiana, Montana, Nebraska, Oklahoma, South Carolina, Tennessee, Texas and West Virginia joined Yost in filing this brief.
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