Kaelan Deese of the Washington Examiner reports on a high-profile merger’s potential impact on the federal administrative state.

The merger between Kroger and Albertsons could ultimately lead to another chip against the armor of the administrative state if the Federal Trade Commission succeeds at contesting the plan.

Earlier this year, the FTC sued to block the $24.6 billion merger, arguing it would create less competition between brands and would lead to reduced product quality, more store closures, and higher prices. Kroger, which argues the merger would actually reduce grocery costs, sued the FTC in Ohio federal court in response, arguing the agency’s in-house adjudication process violates the constitutional separation of powers. …

… Kroger contends that the merger should be adjudicated in federal court, rather than handled by in-house Administrative Law Judges (ALJs), which often are criticized for favoring the legal positions of the agency.

If the grocery store chain’s argument sounds familiar, it is because the Supreme Court recently ruled on a similar matter against the Securities and Exchange Commission earlier this year in the case known as SEC v. Jarkesy, which held that the Seventh Amendment entitles a defendant in a securities fraud case to a jury trial, effectively curbing the SEC’s ability to force disputes before in-agency judges.

“I’m not surprised about this at all,” Case Western Reserve University School of Law professor Anat Alon-Beck told the Washington Examiner of Kroger’s challenge, noting the Jarkesy case “takes a lot of power from the regulators and the administrative state,” and comes at a time when more and more pro-business litigants are taking a sharper aim against regulations.

Specifically, Kroger also claims the in-house judges presiding over such cases are not removable by the president, thus violating the separation of powers as established in Free Enterprise Fund v. Public Company Accounting Oversight Board (2010).

For proponents of heightened regulations on corporations engaging in multi-billion dollar deals, allowing such mergers to be decided by in-agency experts is encouraged because it is seen as protecting ordinary consumers and employees.