Today, TechFreedom filed an amicus brief asking the Supreme Court to limit the FTC’s remedy powers to those that are explicitly granted to the agency in the FTC Act. The consolidated cases are AMG Capital Mngmt. v. FTC, No. 19-508, and FTC v. Credit Bureau Center, No. 19-825.
Although Section 13(b) of the FTC Act grants the FTC the power to obtain a “permanent injunction” in federal court, the FTC has convinced several courts to read that language to allow monetary relief. This judicial shortcut has enabled the FTC to bypass procedures that protect defendants, violating the separation of powers and spurring needless litigation.
“We’re not trying to hamstring the FTC,” said Asheesh Agarwal, Deputy General Counsel at TechFreedom. “We agree that the FTC should have an expeditious way to obtain monetary relief in federal court. We simply argue that the FTC obtain its powers the proper way—the constitutional way. Neither the FTC nor the courts can add remedies to the FTC Act. Only Congress can do that.”
“The judiciary is neither authorized nor equipped to ‘adjust’ statutory language,” Agarwal continued. “This case proves the point. By effectively writing the word ‘equitable’ into Section 13(b), the courts have needlessly exposed that section to several hard questions about the truly ancient distinction between law and equity, which was abolished long ago in federal law and in 49 states. And once the courts depart from the statutory text, confusing and counterintuitive outcomes are almost sure to arise.”
“Congress is the body authorized, and best able, to write the law,” Agarwal concluded. “By expanding Section 13(b), the judiciary has let the FTC bypass other statutory sections that empower it to obtain monetary awards while affording defendants protections Section 13(b) does not contain. Congress, by contrast, can consider the FTC Act as a whole. The FTC Act has not been reauthorized since 1996. It’s long past time that Congress fixed the statute.”
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