September 1, 2023

As CASE has pointed to in the past, Lina Khan’s appointment to chair the Federal Trade Commission was the beginning of a period of historic and embarrassing failures for an agency that is supposed to be tasked with promoting competition. Under Khan’s direction, the FTC has experienced four high-profile legal failures, with a court once again ruling over the summer that Khan’s partisan lawsuits against U.S companies amount to regulatory overreach and political targeting of U.S. companies.

Now Khan’s FTC is at it again. This week, an FTC administrative judge ruled in favor of the agency in a lawsuit against Intuit, an unsurprising development since the judge is an FTC employee. The proceeding is just the latest piece of evidence that Khan is catering to academic elites and partisans who would rather wage an ideological crusade against employers than adhere to the FTC’s mission to protect consumers.

The agency’s greatest accomplishment thus far under Khan has been delaying a merger between Illumina, a healthcare testing company, and Grail, which developed a breakthrough cancer screening test. Public health experts have said the FTC’s intervention will delay cancer screenings and cost thousands of lives, an outcome that should give every American grave concern over how the FTC handles its charge to stand up for and support consumers.

The FTC’s action against Intuit is another chapter in Khan’s “sue, don’t settle” attacks on companies and industries that have been convenient political targets of President Joe Biden’s administration and other anti-free market politicians like Khan’s former boss Sen. Elizabeth Warren. This approach has yielded multiple high-profile losses for Khan, but instead of admitting that her agency is overreaching in its attacks against the free market, she has instead said that the FTC’s losses in court actually prove that the law is wrong rather than her attempted abuse of it.

Legal analysts and even progressive allies have taken notice of Khan’s mounting failures and non-legal attempts to govern by press release. One antitrust expert told Law360 in July, “So long as she continues to promote the same goals she has promoted in the past, she’s going to get the same negative results.” The progressive advocacy organization Chamber of Progress said Khan’s failures undermine the FTC’s credibility. “All these court losses are making their threats look more like a paper tiger,” the organization told the New York Times.

The FTC’s track record under Khan’s tenure as chair has proven over and over again that the agency habitually oversteps its legally defined mission. Just as with previous cases, its decision in the Intuit case is wrong and wholly ignores the facts and the law. Even worse, the FTC has acted as prosecutor, judge, and jury in this case, undermining the independent American judiciary and co-opting the legal process to carry out its political goals.

When government agencies like the FTC undermine the law and the legal system, consumers will inevitably lose. Americans deserve a responsible, balanced, and transparent regulatory approach. They deserve an FTC that respects legal boundaries and promotes a thriving free-market economy that works for consumers. As the Intuit case has shown, just like others before it, the FTC has failed at that job on every front.