The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Federal Trade Commission Chair Lina Khan has ruffled more than a few feathers since taking the Commission's helm. Not only has Khan outlined an aggressive policy agenda, she has also sought to expand the Commission's power and centralize control of the agency within her office, prompting Professor Richard Pierce to predict her term would be a "rollercoaster ride."
Khan's aggressive, progressive agenda has provoked strong opposition from portions of the business community. The FTC's move to eliminate the use of non-compete agreements has been labeled a "breathtaking power grab" and will provoke a serious legal challenge. Another case against Wal-Mart prompted the giant retailer to question the vitality of Humphrey's Executor and challenge the FTC's constitutionality.
Khan's agenda has also prompted discomfort within the FTC, and is apparently prompting one commissioner–Christine Wilson–to tender her resignation. Wilson writes in the Wall Street Journal:
Much ink has been spilled about Lina Khan's attempts to remake federal antitrust law as chairman of the Federal Trade Commission. Less has been said about her disregard for the rule of law and due process and the way senior FTC officials enable her. I have failed repeatedly to persuade Ms. Khan and her enablers to do the right thing, and I refuse to give their endeavor any further hint of legitimacy by remaining. Accordingly, I will soon resign as an FTC commissioner.
Since Ms. Khan's confirmation in 2021, my staff and I have spent countless hours seeking to uncover her abuses of government power. That task has become increasingly difficult as she has consolidated power within the Office of the Chairman, breaking decades of bipartisan precedent and undermining the commission structure that Congress wrote into law. I have sought to provide transparency and facilitate accountability through speeches and statements, but I face constraints on the information I can disclose—many legitimate, but some manufactured by Ms. Khan and the Democratic majority to avoid embarrassment.
That a Republican FTC Commissioner objects to Khan's agenda might not surprise. That Khan's leadership approach has also prompted dissension within the FTC's career ranks, on the other hand, may be more surprising.
From Wilson's WSJ op-ed:
I am not alone in harboring concerns about the honesty and integrity of Ms. Khan and her senior FTC leadership. Hundreds of FTC employees respond annually to the Federal Employee Viewpoint Survey. In 2020, the last year under Trump appointees, 87% of surveyed FTC employees agreed that senior agency officials maintain high standards of honesty and integrity. Today that share stands at 49%.
Many FTC staffers agree with Ms. Khan on antitrust policy, so these survey results don't necessarily reflect disagreement with her ends. Instead, the data convey the staffers' discomfort with her means, which involve dishonesty and subterfuge to pursue her agenda. I disagree with Ms. Khan's policy goals but understand that elections have consequences. My fundamental concern with her leadership of the commission pertains to her willful disregard of congressionally imposed limits on agency jurisdiction, her defiance of legal precedent, and her abuse of power to achieve desired outcomes.
That Khan's leadership style ruffles feathers or departs from precedent does not mean (necessarily) mean that she's doing anything wrong, nor does it mean that her policy initiatives won't survive legal challenge. On the other hand, the sorts of objections being made could be the sorts that could prompt judicial concern or suggest the sort of failure to engage in reasoned decisionmaking that often leads agencies to defeat in court.
UPDATE: Former FTC Commissioner Joshua Wright has an insightful Twitter thread on what Wilson's resignation could mean for the FTC going forward.
A lot of talk today about Commissioner Wilson's impending resignation from the FTC. There will be plenty to say about that I am sure. But I wanted to do a short thread on and what, if any, practical implications for the agency in the near term. Here goes: (1/x)
— Joshua Wright (@ProfWrightGMU) February 14, 2023