House GOP proposes removing antitrust authority from FTC

Andrew Ferguson, chairman of the Federal Trade Commission, would see his agency shorn of its authority to pursue antitrust cases under a proposal from fellow Republicans led by Rep. Jim Jordan of Ohio.

By Julian Mark and Will Oremus

House Judiciary Committee Chairman Jim Jordan (R-Ohio) is proposing to strip the Federal Trade Commission of its antitrust enforcement powers, a move that would shatter a core mission the agency has pursued for more than a century.

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The proposal seeks to transfer the FTC’s antitrust enforcement duties to the Justice Department, which has also traditionally enforced laws that prohibit corporate monopolies and anticompetitive business practices. The language is tucked into an amendment to a huge tax and spending bill moving through the House that will be discussed Wednesday. The proposal would not touch the FTC’s other consumer protection duties, such as working against fraud and deceptive business practices.
The Trump administration has pledged to slash regulations on business and moved to fire more than 1,400 of the 1,700 employees at the Consumer Financial Protection Bureau. That “reduction in force,” now stayed by a federal appeals court, aligns with the White House’s assertion of greater control over the FTC: In March, President Donald Trump handed sole control of the agency to Republicans by firing the panel’s only two Democratic commissioners, who have sued the government in response.

Proponents of Jordan’s proposal say that the dual antitrust roles of the FTC and the Justice Department have led to inefficiencies and turf wars, and that consolidating antitrust under the Justice Department would streamline enforcement. The two agencies, for example, have divided cases taking on large tech companies, with the FTC arguing in court to break up Meta as the Justice Department argues for breaking up Google.

Consolidating antitrust enforcement at one agency would give businesses more certainty on the rules of the road, said Alex Reinauer, a research fellow at the libertarian-leaning Competitive Enterprise Institute.
“We want American businesses to thrive and innovate,” he said. “It’s tough for them to take risks when they are under threat of this very sort of arbitrary antitrust scheme.”

Critics of the proposal, some of them former antitrust officials, say such a consolidation would only hurt consumers.
The FTC was established in 1914 as a result of dissatisfaction over limits the courts had placed on the Sherman Act, which until then had been enforced by the Justice Department, said Maurice Stucke, a law professor at the University of Tennessee at Knoxville. “The belief was that the FTC could be much nimbler in cutting off in the bud anticompetitive, unfair methods of competition,” he said.
Stucke, who worked in the Justice Department’s antitrust division in the Clinton and George W. Bush administrations and served as an adviser to the FTC under President Joe Biden, said the two agencies have typically played complementary roles. But the FTC possesses broader powers to “tackle multiple fronts” of privacy and deceptive practices alongside antitrust, he added, giving it a “broader perspective” into certain consumer harms that the Justice Department does not have.

In its conception as a bipartisan agency, the FTC doesn’t have as direct a line to the president’s authority as the Justice Department does. Trump has challenged that independence in an executive order and in firing the Democratic commissioners, and his supporters have advocated a “unitary executive theory” that puts all executive branch decisions under the president’s control.
“While of course Congress can change the laws, this particular bill serves the same purpose as some of the president’s lawless moves: consolidating power and limiting transparency and accountability,” said Rebecca Slaughter, one of the two Democrats whom Trump removed from the commission in March. “And that does not serve the interests of the American people.”
In recent years, the FTC has taken an increasingly aggressive role in reining in Big Tech, launching Meta and Amazon cases over what it alleges are unfair businesses practices that throttle competition. While the agency was particularly aggressive during the Biden administration under the leadership of Lina Khan, it has continued its scrutiny of the technology sector under Trump, bringing the Meta case to trial in April and launching a case against the ride-hailing company Uber.

Outside tech, the agency sued to block a proposed $24.6 billon merger of grocery giants Kroger and Albertsons, which resulted in a federal judge temporarily blocking the deal in December. The deal has since fallen apart.
The FTC declined to comment on the proposal to transfer its antitrust authority to the Justice Department. Jordan’s office did not respond to requests for comment.
The proposal, part of a larger amendment to the spending bill, is set to be considered Wednesday before the Judiciary Committee, which Jordan chairs. If the committee advances the amendment, it would still need to clear the full House as well as the Senate.
Rep. Jamie Raskin (Maryland), the ranking Democrat on the Judiciary Committee, agreed that the measure would hurt consumers.
“The name of the game is to dismantle the Federal Trade Commission’s power so Trump’s chosen friends can violate the law and plunder the consumers,” he said in a statement. “Republicans’ bill gratuitously kneecaps the institution best situated to protect the public from monopolies that hurt Americans. So, who are Republicans really working for here — the American people or Big Business?”

William Kovacic, a law professor at George Washington University and a former Republican commissioner at the FTC, said the idea of the proposal has been kicking around for years. But he said this is a “uniquely bad time” to implement it, with the FTC taking on tech giants that raise issues involving competition, privacy and consumer protection — the agency’s core expertise.
“It’s not stupid to ask why we would allocate some functions of government to more than one agency,” Kovacic said. “What is foolish is to address it in this manner and in this process. This is ‘ready, fire, aim’ government.”