Axon Enterprise, Inc. v. FTC (21-86)

argument 21-86

Axon Enterprise, Inc. v. FTC

Supreme Court of the United States 1h 31m 8 speakers 8 chapters transcribed 6 days ago official recording ↗

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What constitutional jurisdiction issues does Axon raise against the FTC?

John G. Roberts 0:00

We will hear argument first this morning in case twenty one eighty six,

Charles J. Cooper 0:03

Axon Enterprise versus FTC. Mr. Clement.

John G. Roberts 0:06

Mm-hmm.

Charles J. Cooper 0:07

Mr. Chief Justice, and may it please the court. Congress has expressly granted district courts original jurisdiction over all civil actions arising under the Constitution, and it is common ground that Congress has never expressly withdrawn or restricted that jurisdiction with respect to the constitutional claims at issue here. Instead, all that Congress has done expressly is to give additional jurisdiction to the Courts of Appeals to a person subject to an FTC cease and desist order. Axon is not subject to and does not challenge such an order. Instead, Axon challenges the constitutionality of statutes that insulate agency officials from presidential removal and the clearance process by which Axon Is denied access to the courts.

Charles J. Cooper 0:55

Nonetheless, the government insists that the grant of additional jurisdiction to the courts of appeals over orders not at issue here impliedly precludes jurisdiction that Congress expressly conferred. That argument does not follow from any explicit statutory text, and the three factors that this court has fashioned to decide the reach of implied precursion. Conclusion, all favor district court jurisdiction here, just as in free enterprise fund. First, any review mechanism that delays judicial review of a here and now constitutional injury until it has come and went does not provide meaningful review. Second, the constitutional claims here are wholly collateral to the merits of any particular contested acquisition.

Charles J. Cooper 1:41

And third, and finally, the case is a very important thing to Finally, not only does the agency lack expertise in these constitutional issues, it is wholly outside its authority to declare itself unconstitutional or strike down removal restrictions on ALJs that are located in an entirely separate statutory provision. Simply put, there is nothing in the statutory text nor the Thunder Basin factors that provides a basis for finding in two express grants of jurisdiction an elimination of the jurisdiction to for the claims at issue here.

Clarence Thomas 2:15

Uh Mr Clement. Mr Clement, um Is this case uh distinguishable from uh free enterprise? We seems as though we've been down this road.

Charles J. Cooper 2:28

We don't think it is distinguishable from Free Enterprise, Justice Thomas. Obviously, some lower courts have disagreed with us on that. But I don't think there's any material basis for distinguishing the two, especially when you look at the nature of the claims here. The nature of the claims here are structural claims. They go to the very existence of the agency, and those are wholly collateral to the merits of any acquisition. Those claims are beyond the competition of the agency. competence of the agency and the agency is not in a position to provide meaningful relief.

Clarence Thomas 2:58

Could you take just a minute to uh set out um just more specifically why the agency could not consider these constitutional claims within its structure. What uh I think you'd have to start by saying what it actually does and what would be reviewed at the appellate level after the agency issues an order.

Charles J. Cooper 3:20

Sure. So if you start with the the typical case where the agency builds an administrative record that informs their position on a particular transaction, uh All of the claims here are sort of cross-cutting or maybe even logically anterior to any of that process. One of the due process claims goes to the clearance process by which a transaction goes before the FTC rather than the Justice Department. And that claim obviously doesn't really focus on FTC agency action, but it focuses on executive branch action that is beyond the FTC. And then as to the more structural claims, Those are beyond the competence of the agency for two reasons. One, no agency has the authority to declare itself unconstitutional.

Charles J. Cooper 4:02

But if you think about the double four-cause removal restriction on the ALJs in particular, I mean the most logical way to remedy that violation, at least following the logic of Free Enterprise Fund, would be to declare the second layer of four-cause removal provisions unconstitutional.