Last week, the Federal Trade Commission’s antitrust authority barely escaped intact from the House Judiciary Committee’s attempt to close it down and send all pending matters over to the Justice Department. The idea was sponsored by Judiciary Committee Chairman, Jim Jordan. It was in keeping with the DOGE effort to shrink the size of the federal government and eliminate agencies the administration considers superfluous.
Chairman Jordan pulled the proposal at the last minute out of a procedural concern that it was not tied closely enough to revenue and expenditures to survive the Senate Parliamentarian’s determination of what could be included in budget reconciliation (a tactic used to avoid a potential filibuster).
Chairman Jordan vowed to reintroduce the idea in a free-standing bill, which, however, would be subject to a Senate filibuster. The bill would have a better chance if it were stripped of its non-budgetary aspects so as to fit into the “Big Beautiful Bill” when it comes back to conference from the Senate. Simply prohibiting any money from being spent by the FTC’s antitrust arm (the Bureau of Competition), with no other specifications, would be sufficiently budget-centric to qualify.
After the Big Beautiful Bill passes, a subsequent bill could then allocate the pending cases to the Department of Justice. That clean-up bill would be unlikely to generate a filibuster since the Democrats in the Senate would not want to close down the antitrust matters the FTC is currently pursuing.
This two-step move would be in keeping with President Trump’s approach to other agencies that it’s seeking to abolish simply by not funding them—like the US Agency for International Development or the Department of Education.
The decision to close antitrust enforcement at the FTC should not be made out of antipathy toward any particular current case, though the DOJ should absolutely consider not re-filing the FTC’s weaker cases that are unbacked by strong antitrust analysis. The larger concept of restructuring should be based on the conclusion that the FTC no longer serves a useful, separate antitrust purpose from the DOJ.
The FTC was established in 1914 to be a panel of business experts who would create codes of acceptable conduct and prevent and punish “unfair methods of competition.” DOJ, by contrast, had a law-enforcement focus in applying antitrust. Only DOJ, for instance, had criminal authority in antitrust. Its purview was the 1890 Sherman Act that outlawed monopolization and conspiracies in restraint of trade, not so expansive a domain as “unfair methods of competition.”
Over the years since 1914, however, the FTC brought almost no cases under “unfair methods of competition” that were not also violations of the Sherman Act. That was by design -- to give American business a clear and consistent roadmap as to what conduct was permissible.
The Sherman Act has been applied thousands of times, and with a notable (and regrettable) exception of an attempt during the Lina Khan era as Chair, the FTC for 110 years avoided using its authority to promulgate antitrust regulations beyond the Sherman and Clayton Act.
All that remains, therefore, of the FTC’s uniqueness is its structure: instead of one Assistant Attorney General in charge of the Antitrust Division, appointed by the current President, the FTC was governed by a majority of five commissioners, with no one President’s appointees dominating. With the Trump Administration, even that distinction has now dissipated. President Trump fired the two Democrats on the FTC. They are suing to hold on to their jobs, but, in a case involving different agencies but otherwise parallel, the Supreme Court indicated last week that President Trump was likely to win.
Consistent practice of over a hundred years at the antitrust arm of the FTC, the desire to give clear and consistent guidance to business, and the imminent likely U.S. Supreme Court opinion upholding Presidential authority to remove Commissioners once considered protected at “independent” agencies have fundamentally undercut the case for the FTC’s Bureau of Competition.
