The FTC vs. the Right to a Fair Trial

The Food and Drug Administration recently proposed capping the nicotine in cigarettes, which will encourage many smokers to smoke more to get the same nicotine dose. It also attempted to ban Juul’s vaping products outright, though a court temporarily stayed that action. Now the Federal Trade Commission (FTC) is getting in on the action by using its antitrust powers to attempt to kneecap Juul, the second-largest vaping producer. Most concerning is how they’re doing it, as Jessica Melugin and I explain in National Review:

Many agencies, including the FTC, have an internal administrative law court that operates outside of the independent judicial system outlined in Article III of the Constitution. Agencies choose the judges and pay their salaries, set the rules for the procedure and evidence, and rarely lose. So it was a big deal when the FTC lost against Juul in its own court, and lost decisively: The judge—who, again, was chosen and is paid by the FTC—ruled against every one of the FTC’s claims. In complicated cases, judges often throw the losing party a bone or two in the decision. That wasn’t the case here.

Had this case been tried in the regular court system, that would be the end of the matter. But the FTC has one more trick up its sleeve: The commissioners themselves can rule on any appeals of their administrative court’s decisions. In other words, if they don’t win the cases that they decided to bring in their own in-house court, they give themselves a do-over.

The FTC’s do-over vote will likely happen this month. It’s been at least 25 years since the commissioners have voted against their side in a case, so the only suspense is whether this will be a unanimous 5-0 vote to overturn its administrative court or one or two commissioners will dare to dissent.

This problem goes well beyond backfiring attempts to get smokers to quit. Abuse of administrative courts erodes fundamental principles such as the right to a fair trial, an independent judiciary, and the separation of powers. Prohibition and prohibition-lite policies harm everyone, not just the obvious victims.

Read the whole piece here.