On February 18, 2022, Len Gordon was quoted in Law360 on the potential impact of the U.S. Supreme Court’s decision in Axon Enterprise Inc. v. FTC. According to the article, the case arose from police body cam supplier Axon Enterprises' bid to fend off a Federal Trade Commission (FTC) merger challenge. Axon initially asked that the high court case examine the constitutionality of the FTC's structure, but the court agreed to review only the narrower question of whether district courts could take up such constitutional challenges before the agency has issued a final order of some kind.
Gordon told Law360 that the court appears focused for now on the process of disputing agency actions, not on whether the commission's own mechanics pass constitutional muster. That question is "limited," he said, but the jurists may well decide that federal courts can hear such challenges before the commission's own procedure is over, which would mark a shift in jurisprudence. "The law as it sits right now is not very favorable for those kinds of challenges."
Gordon pointed out that even with the justices tackling only the question of bringing suit in district court against the FTC, a ruling in Axon's favor could be cited in any number of lower court cases seeking to buck agencies' administrative authority. "Anybody who's got a challenge to the constitutionality of either the process that the government agency is engaged in, or the constitutionality of the way the agency is set up … it will open up the opportunity for a sort of collateral attack on what the agency does," he said.
Gordon said plenty of these cases are waiting in the wings. "There are always some people claiming the administrative state is depriving them of due process."
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