Meta ‘Far From the First’ to Challenge FTC’s Constitutionality, Says FTC Reply Brief

Unhappy with the FTC’s “scrutiny of its privacy practices,” Meta alleges various theories why the entire agency is unconstitutional, but its latest arguments show that its claims “have no support,” said the FTC’s reply brief Wednesday (docket 1:23-cv-03562) in U.S. District Court for the District of Columbia in support of its Dec. 13 motion to dismiss Meta’s claims.

The FTC seeks to dismiss Meta’s Nov. 29 complaint (see 2311300039) and request for a preliminary injunction to block the agency from modifying its 2020 privacy consent order to include new restrictions on the company’s business activities (see 2312080034). The FTC contends that the administrative and judicial remedies it has pursued against Meta to protect consumers’ privacy are consistent with the agency’s “statutory mandate” under the FTC Act (see 2312140008).

Meta is “far from the first litigant” to challenge the constitutionality of the FTC commissioners’ removal protections “based on post-1935 changes to the FTC Act,” said the reply brief. All courts to have considered that argument “have rejected it and affirmed the FTC’s constitutionality,” including the 5th U.S. Circuit Appeals Court’s Dec. 15 decision in Illumina v. FTC (docket 23-60167), it said. The D.C. district court “should hold the same,” it said.

Meta continues to argue that the FTC’s current composition -- three commissioners from the same party -- renders it unconstitutional, but that argument “continues to be baseless,” said the reply brief. Since its enactment, the FTC Act has authorized the commission to operate “even when some seats are vacant,” it said. The two Republican commissioners resigned, and the Senate has not yet voted on President Joe Biden's nominees to replace them.

Article II removal cases are ultimately about ensuring that executive branch officers are accountable to the president so that the president is accountable to the public for executing the laws, said the brief. Meta hasn’t explained how having three commissioners from the same party as the current president “somehow renders them unaccountable,” it said: “Meta’s claim should be dismissed.”

The company isn’t entitled to relief “without a showing of prejudicial harm,” said the brief. The court should also dismiss Meta’s Article II claim because Meta hasn’t alleged that the president’s “restricted ability” to remove the commissioners “is causing any harm to Meta,” it said.

Properly appointed officers’ actions are valid regardless of the constitutionality of their removal protections, so there’s no basis “to prevent them from continuing to act,” at least not without some showing -- absent here -- that the restrictions on the president’s ability to remove the officer “has some harmful impact on the challenger,” said the brief. Other courts “have followed this reasoning to deny relief," including in cases involving ongoing agency actions, “and this court should too," it said.

At a minimum, the court should hold that Meta isn’t entitled “to the injunctive relief it seeks,” said the brief. Even if the FTC commissioners’ removal protections were unconstitutional, the company “could at most obtain declaratory relief invalidating the removal restrictions, not the sweeping injunction Meta seeks,” it said.

Meta’s constitutional Article III claim should also be dismissed because the FTC’s modification proceeding “involves public rights,” said the brief. The company's conception of the public rights doctrine “is contrary to binding Supreme Court precedent,” it said. Meta’s other arguments “are also unpersuasive,” it said. The key issue in statutory modification proceedings is whether a prior FTC administrative order “should be modified to protect consumers,” it said. The agency may modify orders “regardless of whether they are consent orders,” it said.