Providers, giving you a front row seat to democracy the u. S. Supreme court rule animously that those facing ftc Enforcement Actions can chlenge the agency in federal court, prior to the investigation being completed. The oral argument for the federal trade commission was heard in november of 2022. The high court made a simar ruling involved in these securities and exchange commission. The oral arguments are about 90 minutes. We will hear arguments warning in case 21 86 axon underprice forcesft mr. Lent . Mr. Chief justiy it please the court, congress has expressnted this courts original juriion over all civil actions arising hundreds constitution. And it is Common Ground that congress has never expressly withdrawn or wrist restricted at jurisdiction with respect to the constitutional claims issued here. Instead, all the congress has done expressly is to give additional jurisdiction to the courts of appeal, to a rn subject to an ftc and citizens historic. Akronot subject to and do not challenge such an order, instead, acts and challenges the nstitutionality of statutes that insulate agency offici from president ial removal, and the clearance process by which axon is denied acces the courts. Nonetheless, the goveren insists that the of additional jurisdictiotthe courts of appeal orders not at iss he implied leap precludes Jurisdiction Congress expressly conferred. At argument does not follow from any explicit statutory that discourse has fashioned to decide the reach of implied pollution, all favor District Court jurisdiction re, just as in Free Enterprise modes. For first, any review mechanism that she did delay judicial review of a hearing now constitutional entry, until it has come and went, is not providing meaningful review. Second, the constitiol claims here are wholly ateral to the merits of any particular contested acquisition. D ird, and finally, not only does the agency lab expertise on these constitutional issues, it is wholly outside of its authority to declare itself unconstitutional or strike down removal restriction aljs but are located in an entirely separate statutory provision. Simply put, th is nothing in the statutory attacked, nor the Thunder Basin factors that pride the basis for finding into expressing grants of jurisdictions, and elimination of the jurisdiction for the claims issued here. Mr. Clement, mr. Clement, is th case distinguishable from Free Enterprise . Down this road. Ugh we have been we dont think it is distinguishable from Free Enterprise, justice thomas, oby some lower courts can disagree with us on that. But i dont think that there is any material basis for guishing the two, the specially when y look at the nature of the claims here. The nature of the claims here, the structural claimy go to the very existence of the ag and those are whollycollateral to the merits of any acquisitions. Thclaims are beyond the confidence of the agency. And the agency is not in a tion to provide meaningful relief. Could you take just a minu to set out just more specifically why the agency could not considerthese constitutional claims . Within its structure . What, i think he would have to start by saying what is acy done, and what will be reviewed at this level after the agencyissues in order . Sure, so if you startwith the typical case where th agency builds an administrative record, that i their position ona particular transaction, all of the claims hereare sort of cross cutting or even maybelogically anterior to any of that process, one of the two process claims goes to the clearance process by which a transactiongoes before the ftc, rather than the Justice Department. And that claim obviously doesnt really focus on ftc agency , but it focuses onexecutive branch action, be the ftc and then as to the more uctural claims, i mean, those are beyond the confidence of the agency fortwo reasons. One, no agency has the authority to declareitself unconsonal. But if you think about the double for cause removal riction on the aljs and ridicule are, the most logical way toremedy that violation at least following the logicof Free Enterprise fund would be to declare the second layer of for cause removal prov unconstitutional. That second layer of provisionis entitled five, five uscseven 5 21, it is not in c act. So the ea that the ftc could e another actof congress and a different ti the u. S. Code unconstitutional its completely beyond its caveat. But of, course that is exactly what District Courts do, on a daytoday basis. Ercising jurisdiction under section 13 31. May i ask mr. Clement about the scope of your argument . Ecause sometimes, as you ju responded to justice thomas, are focused very specifically onthe constitutclaims that issue in thiscase. Analysis lends itself to thate kind of focus you have other arguments in your brief, u know, sometimes you call them the plai text arguments, just about the y 13 31 and the review which would seem to go much further would seem to sweep in not just constitl claims, and statutory claims, and would seemto sweep inmany preliminary rulings, you know, rulings. Ly interlocutory it might be evidentiary rulings, it might bediscovery rulings. Some of those statutory arguments would seem to extend claims at issue here. Tutional so which of you eally arguing . Just again, i am really arguing to his case on the thunder bactors, that seems to be the ightforward way to win the case. If i could just take nt about the broader argument, i thk f you look at the statutes, he court were drawing on a clean , i would probably say the right way to decide these cases is o course ther jurisdiction, and there is e host of non jurisdict doctrines, like rightness and exhaustion thuld bly get you to almost the exact sameresult as the funder basin factors. Might quibble that thesessor, i factors that the co has come up with four jurisdictions really should go to nonjurisdictfactors, in this case they should be resol the 6 11 b one. But i am not a law fessor, i am here representing a client, and i think our client winds well under the thunder bay some factors. So wee happy to win on those factors. Co almost any administrative prcould be unconstitutional issues. Whether or this immigration issue. All of those petitioners are required to go through administrative prs, despite the faat most of thos agencies cant h constitutional issues. So i donw what makes this situation diffe other than perhaps, and i am not sure about this, the existence of the two disciplinary bodies . The fact the aff remo close challenge. But also all of the other due process challenges seem to be the quintial process dependent claims, ynt get more enter warned them that. Your argument seems to be saying that any rocess claim comes, what about the claim that there has been an abandonment, that the violated her Due Process Rights by failing to follow its own a classic due process claim. Thats, think, in almost ever other Agency Action. We wait until the end of the review processhe court to look at it. So it seems to be that you are saying that this is unfair, because i have to go through but going through the proc is what due process is all about. I dont understand why you are any different than any other Administrative Agencyto share who has to go through the process, a flawed process. And when italy and to have corrected. So, ju, with respect to due process and particular, i dont thin are arguing for special rules wrticular agency. Ook at the courts cases, and they go all the way back to matthews be eldridge, and mcnary, this would apply in immigration cases as well. The distinction that the court has drawn is between cross cutting due process claims that dont anyway depend the case. Mstances of a particula so if you think essentially on its face that the statute doesnt provide due process, then that does seem like the claim that is fully collate to the merits of any particular but what about if you w you dont care how you win. Meaning, once you are in a if you have been given an adequate process, could you still win . You are no going to, you are going to suffer the litigation cost, except but it basis you win on, does it . Well this just gives you another hole in pocket, another card in your pocket you can play if you lose. I dont think that is quite right, justice sort of mayer, which is that this isnt a case like el jay where there is a review process for losing your federal job, and all the plaintiffs wanted was their deral job back. This is not a situation where we want is to not have a seasoned disorder. Oh, it is, because your complaint asks the district to enjoy the fcc of exclusion from pursuing administrative enforcement action, your motion f preliminary injunction asks for the same thing. Absolutely so it is decide tied to the proceeding very directly . It is tied to the ding, but it is not tied to a cease esist order in the same way as the challenging e we believe that we suffer a here and now constonal inquiry, just from being ted to an unconstitutional Agency Process, respect to the removal strictions, and we think we suffer an injury the second that we are assigned to the ftc, department. The justice and effectively denied any those are the claims that we want to bring, they are not the claim that, like, we wanted to have three witnesses and we only got two and two, is if the alld have just given us one more witness that would have satisfied due process. Those are the kinds of claims theyre not wholly collateral, and those are the kind of claims that belong administrative process. But whats the remedy that you, sorry, go ahead. I was gonna say the examples you gave are pretty extreme to make your point. But it strikes me that your ction between structural constitutional claims and particular due process claims, d the proceedings, its going to bhard to draw in a large number case. Particularly if you prevail and people it makes a difference to when they can bring the constitutional all with respect, mr. Chief justice, idont know that that is the case, i, mean are asking for,as i stressed with Justice Kagan, is an application of the hungarian factors. I think what we have talking about really goes to the second factor about t means to bewholly collateral. Anont really think that that is thatdifficult to apply in the ocess context, if you think that the statutes set up and just dont have any witness, at is gonna be true in every single hearing . That seems like a case th arent gonna be able to share, but that is an easy case, anytime you get multi factors as a Thunder Basin,the application is going difficult, and i think in many cases. Look, there are goingto be educators to be sure, and i guess i, would you, know this is where i would sort of remind you that the statutory text actually is pretty clear here. And if we are going to have role for the edge cases, i uld rather live ina republic where he role for the edge cases which we erron the side of giving the citizen early access to the court, opposed to airing on the side of differing judicialreview. I, mean the court couvide a different presumptionashes pose to help in these cases, but i would prefer it if it was theesumption that was in of judicial review, after all,congress did pass 13 31 that does seem toomised people that if you have a problem with a constitutnality of Government Actions you can getearly access to courts of sorting out. But. , why doesnt whether ort is wholly collateral turn something extent on the medy that you are asking fo it would seem to me that one way to think aboutthe collateral myths of this, is whether when u are done with it the claim that you want bring instrict court, you would k to the agency and the agency would proceed. I think that insituation in which you have the type of claim maybe some of your rural claims with respect to the for example, if the remedy is justgive us a new alj, then there is a concern that what is happening llowing citizens go to the District Court is that theyre sort of super intending the agency s. Therefore you could say it is in the same way as if he went over and edy was to terminate the agencyprocesses. So why shouldnt we be thinking about the collateral nature of this based the remedy that you are asking for . So two things,Justice Jackson, first of all, i think the most sort of straightforward way to think out whether it is fully collatedoes it turn on the back cts of the particular case. Or is it a claim that would be the same no matter what the facts of thicular where the particular. Individual. Circumstances of an on your circumstances, and tter think it is fully collateral. To your point about the, remedy, i think that its favoring, especially on the removal. Because i think the problem is that there are s where the remedy you want is really to have your federal job back or the mind safety board, order vacated, and in those situations maybe it makes sense , yeah, you know, u are in the process, at least do an order, at the end of the order you can get it catered. That is good enough that is a meaningful judiciary remedy. Maybe im so, clearly i have a returning does not and we re so that your claim is such you know, the core constitutional claim that the y doesnt have the District Court because if you win, andgency is done. What i am concerned about is the interpretation that allows you to take certain claims over to the district cour have it impact the agencys ongoing proceedi, in a way that makes it one that that is what congress ind in terms of saving 14 3 so i guess i would just i think you are right that if you have a remet says i ought to be compl immune from this agens actions at all, that is something that does seem like it should able to go forward in District Court. But i think if have a claim that is effectively i shouldnt be in front of this agency at all as currently structured, that is equall a claim that doesnng in front of the agency. I think, as i ted to justice, thomas k it is particularly where we start thinking about right remedy for the dfor across remo restriction here. Now oby you can remedy a double for cross removal restriction by invalidating either layer of removt if a court were to the pattern of free enterfund, he would get rid of the second layer of removal restrictis, and those are in five u. S. Cities, 21. Mr. Clement, go ahead. Sorry, i just to know, can you say a little bit about what remedy want for youk fought claim . Are you arguing that everything needs to go to the doj tracked . Or are you saying you just want transparency on that claim . Because we have been kind of focused on the i think eit one of those would probably remedy the claim. So, you know, i think we would ask for what would probably be the roasted robust remedy, which is to send us to the doj, we want early access rt. But if a Court Fashion the remedy that says that, okay, are gonna provide transparency o this process, and i dont know what it would, be and everything sort of a through am goes to the doj, and everything and through z goes to the ftc, some things that would tell the citizenry, okay, there i a rational process by w you are being denied early a to courts, i think that would at least be unavailable. But obviously we have got stuff, we lost ithe get to the point of electing r remedies. Do you think that is a weaker case for immediate reinforcement action and District Court . And the removal claim . Ean i would suppose by one take on the scale, sure. The claims that go to the very existence of the agency, the structure of the agency is currently structure have to be, mind you, the strongest possible claims, but i think a due process claim discussion that is interior to the whole Agency Process wou be pretty high on the list as well. I could say one thing about why i t in addition to the existential nature of the kind of removal cla why that is such a strong case. Is because if you sort of think about like the theory for why it is that like a challe to kind of early Agency Action doesnt go to fedeurt, it st be, i think, on the theory, that, well and to look at to the article three, there is at least supervision by the article two branch that with some protection at their y. Article two circulation beinghe provided by the president is insufficient, then you are really saying, i dont have any states before the executivehe branch. And that really does seem like a claim that almost uniquely belongs in District Court. And then it gets resolved one way or another. And i ask you about for rprise funds and regular, the opinion in the ninth circuit really tried carefully part of elgin and Free Enterprise funds. What do you do as a permanent e fund that emphasizes the fact that it was the investigations stage, and that that would be the only way, therefore there would be no way er to get judicial review of claim at issue there. I guess the one paragraph on four 90 of Free Enterprise funds, how do you think we uld deal with that . Well i think you should deal with it by sort of applying it here and saying,actually, it is on all fours wit that situation. An, obviously, free entee because of the structure there, you have the unique sort of dynamic that there is about the boards activ and the review mechanism, dealt withcommissions activity. But with respect to the idea the only real way you can get review for the here and now entry that the Free Enterprise fund was sufferi was sort of to precipitate a contempt sanction and go to immediately. That is exactly our situation. To the cease and desist order. We have been trying for years get out of theftc process, which ve even offered to walk awayfrom the transaction. So we think just being subjectedto their processes as currently structured its our injury. That to remedy is exactly what Enterprise Fund. S in fre we couldtry to resist any cooon with theftc, sort of kept ourselves in co and see if they did something to bring us to federal court but this court has, saidwe dont have to vet the farm in thnd of way. Yourstinction of elgin, i want to explore it briefly. So, if you are bringing a claim, challenging the constitutionality of the statute th