Court of Appeals for the Fifth Circuit

Intuit v. FTC

24-600400 citations·Filed March 20, 2026

Summary of the case Intuit v. FTC

The Fifth Circuit Court reviewed Intuit's petition against the FTC's cease-and-desist order regarding deceptive advertising of TurboTax Free Edition. The FTC alleged that Intuit's advertisements misled consumers into believing all TurboTax products were free, violating Section 5 of the FTC Act. The court found that adjudicating deceptive advertising claims before an administrative law judge violated the constitutional separation of powers, referencing the Supreme Court's decision in SEC v. Jarkesy. The court granted Intuit's petition, vacated the FTC's order, and remanded the case for further proceedings.

Key Issues of the case Intuit v. FTC

Constitutional separation of powers
Deceptive advertising claims

Key Facts of the case Intuit v. FTC

FTC issued a cease-and-desist order against Intuit for deceptive advertising.
Intuit's advertisements claimed TurboTax Free Edition was free for 'simple tax returns'.

Decision of the case Intuit v. FTC

Intuit’s petition for review is GRANTED; the FTC’s order is VACATED; and the case is REMANDED to the agency for further proceedings.

Impact of the case Intuit v. FTC

The decision emphasizes the constitutional requirement for certain claims to be adjudicated in Article III courts rather than by administrative law judges.

Opinions

Case: 24-60040 Document: 230-1 Page: 1 Date Filed: 03/20/2026

United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________
FILED
March 20, 2026
No. 24-60040
____________ Lyle W. Cayce
Clerk
Intuit, Incorporated,

Petitioner,

versus

Federal Trade Commission,

Respondent.
______________________________

Petition for Review from the Federal Trade Commission
Agency No. 9408
______________________________

Before Jones, Barksdale, and Ho, Circuit Judges.
Edith H. Jones, Circuit Judge:
The Federal Trade Commission (“FTC”) is authorized by Section 5
of the FTC Act to prosecute “unfair or deceptive acts or practices”
involving interstate commerce. 15 U.S.C. § 45(a)(1). Affirming an
administrative law judge (“ALJ”), the FTC imposed a cease-and-desist
order on Intuit, Inc., for “deceptive” advertisements that one of its popular
TurboTax preparation products is “free” for “simple tax returns.”
Following the Supreme Court’s decision in SEC v. Jarkesy, 1 we hold that

_____________________
1
603 U.S. 109, 144 S. Ct. 2117 (2024).
Case: 24-60040 Document: 230-1 Page: 2 Date Filed: 03/20/2026

No. 24-60040

adjudication of a deceptive advertising claim before an administrative law
judge violated the constitutional separation of powers. Intuit’s petition for
review is GRANTED; the FTC’s order is VACATED; and the case is
REMANDED to the agency for further proceedings.
I. BACKGROUND
Petitioner Intuit, Inc. sells “TurboTax,” a popular line of online and
desktop tax-preparation products. TurboTax “Free Edition” has been part
of the TurboTax range for more than a decade, available to taxpayers for what
Intuit refers to as “simple tax returns.” Most American taxpayers do not
have “simple tax returns.” Intuit has expanded access to the TurboTax Free
Edition over time, but “simple tax returns” has previously excluded
taxpayers with mortgage and property deductions, itemized deductions,
unemployment income, education expenses, charitable donations above a
certain threshold, investment or rental property income, and expenses from
self-owned businesses. The TurboTax website is designed so that any
individual taxpayer can begin preparing a tax return in TurboTax Free
Edition, but those who enter disqualifying information are prompted before
filing to upgrade to a paid product.
Intuit advertised TurboTax Free Edition across a variety of popular,
accessible media. These advertisements typically drew attention to the fact
that TurboTax Free Edition does not cost anything, although Intuit usually
added disclosures that state the TurboTax Free Edition is limited to
taxpayers with “simple tax returns,” “simple U.S. returns,” or similar
verbiage.
In 2022, FTC issued an administrative complaint alleging that
TurboTax Free Edition advertisements deceived consumers into believing
that all TurboTax products are free. These allegations were predicated on
Section 5 of the FTC Act, which proscribes “unfair or deceptive acts or

2
Case: 24-60040 Document: 230-1 Page: 3 Date Filed: 03/20/2026

No. 24-60040

practices.” 15 U.S.C. § 45(a)(1). 2 The Commission initially filed suit in the
Northern District of California and moved for a preliminary injunction
against Intuit, which was denied. FTC then changed course, abandoned the
federal suit, and pursued a cease-and-desist order by means of internal
adjudication. An ALJ presided over the adjudication and issued a decision
concluding that Intuit’s advertisements were likely to mislead a significant
minority of consumers. On appeal by Intuit, three Commissioners affirmed
in an opinion largely tracking the ALJ’s decision. The cease-and-desist order
is remarkably broad: it prohibits Intuit for the next twenty years from
advertising “any goods or services” as free unless specific, extensive, and
arguably unworkable requirements are satisfied. The order is not confined to
tax-preparation solutions and extends to all products sold by Intuit. 3
II. DISCUSSION
Intuit petitions for review under 15 U.S.C. § 45(c) and raises a variety
of arguments. 4 The threshold argument that FTC unlawfully adjudicated

_____________________
2
This case does not consider any unfair competition claims under the FTC Act
other than claims for deceptive advertising. 15 U.S.C. § 45(a)(1) (“Unfair methods of
competition in or affecting commerce . . . are hereby declared unlawful.”).
3
Intuit’s numerous products include (but are not limited to) several individual tax
preparation software programs, professional tax programs, credit score reporting software,
and an email marketing program.
4
The arguments fall into three categories. First, Intuit contends that the agency
proceeding was unlawful because deceptive advertising claims involve “private rights”;
removal protections for FTC commissioners violate the Constitution; agency discretion to
adjudicate claims internally or in court violates the nondelegation doctrine; the
combination of prosecutorial and adjudicative functions in a single government agency
violates due process; and due process required then-Chair Lina Kahn to recuse. Second,
Intuit assails FTC’s decision for insufficient evidence, applying a stricter deception
standard than appropriate, analyzing TurboTax ads in a piecemeal manner, and holding
that various TurboTax website disclosures could not cure consumer deception. Third,
Intuit contends that the cease-and-desist order is unlawful because it was unnecessary,

3
Case: 24-60040 Document: 230-1 Page: 4 Date Filed: 03/20/2026

No. 24-60040

“private rights” before an ALJ rather than in an Article III court proves
dispositive. The Commission rejected that argument, and our review is de
novo. See Emp. Sols. Staffing Grp. II, LLC v. Off. of Chief Admin. Hearing
Officer, 833 F.3d 480, 484 (5th Cir. 2016).
A.
Because the Supreme Court’s decision in Jarkesy undertook a careful
survey of authorities bearing on the constitutional status of administrative
agency adjudication, an abridged account suffices. The Constitution
exclusively vests the “judicial Power of the United States . . . in one Supreme
Court, and in such inferior courts as the Congress may . . . establish.” U.S.
Const. Art. III, § 1. Accordingly, Congress may not “confer the
Government’s ‘judicial Power’ on entities outside Article III.” Stern v.
Marshall, 564 U.S. 462, 484, 131 S. Ct. 2594, 2609 (2011). The Constitution
also fixes the scope of the judicial power, as it “shall extend to all Cases, in
Law and Equity, arising under this Constitution, [and] the Laws of the United
States.” U.S. Const. Art. III, § 2, cl. 1. Whether a given claim falls within
that scope turns on a longstanding distinction between “public rights” and
“private rights.” Exec. Benefits Ins. Agency v. Arkison, 573 U.S. 25, 32, 134
S. Ct. 2165, 2171 (2014).
1.
The Supreme Court has explained that private rights are implicated
by “any [claim] which, from its nature, is the subject of a suit at the common
law, or in equity, or admiralty.” Murray’s Lessee v. Hoboken Land &
Improvement Co., 59 U.S. (18 How.) 272, 284 (1856) (emphases added).
Courts often ask whether a claim “is made of the stuff of the traditional
_____________________
overbroad, vague, and arbitrary and capricious. Intuit concedes that several of its
arguments are foreclosed by binding precedent.

4
Case: 24-60040 Document: 230-1 Page: 5 Date Filed: 03/20/2026

No. 24-60040

actions at common law tried by the courts at Westminster in 1789,” although
Article III extends beyond strictly “legal” actions. Stern, 564 U.S. at 484,
131 S. Ct. at 2609 (internal quotations and citation omitted). Claims that are
naturally “the subject of a suit at the common law, or in equity,” implicate
private rights and thus fall under federal jurisdiction regardless “whether
they originate in a newly fashioned regulatory scheme or possess a long line
of common-law forebears.” Granfinanciera, S.A. v. Nordberg, 492 U.S. 33,
52, 109 S. Ct. 2782, 2795–96 (1989). And “[o]nce . . . a suit ‘is brought within
the bounds of federal jurisdiction,’ an Article III court must decide it.”
Jarkesy, 603 U.S. at 127, 144 S. Ct. at 2131 (quoting Stern, 564 U.S. at 484,
131 S. Ct. at 2609). Claims that fall within a “public rights” exception, on
the other hand, may be adjudicated by administrative agencies. See Oil States
Energy Servs., LLC v. Greene’s Energy Grp., LLC, 584 U.S. 325, 334, 138 S.
Ct. 1365, 1372–73 (2018).
The concept of public rights has been somewhat nebulous. In an early
pivotal case, the Treasury Department declined to proceed through an
Article III court to execute a distress warrant on property owned by a corrupt
government revenue collector. The Supreme Court supplied what has
become the standard definition of public rights. See Murray’s Lessee, 59 U.S.
(18 How.) at 284 (“[T]here are matters, involving public rights, which may
be presented in such form that the judicial power is capable of acting on them,
and which are susceptible of judicial determination, but which [C]ongress
may or may not bring within the cognizance of the courts.”). More recently,
the Court explained that the “point” of Murray’s Lessee is nothing
extraordinary: “Congress may set the terms of adjudicating a suit when the
suit could not otherwise proceed at all.” Stern, 564 U.S. at 489, 131 S. Ct. at
2612. Also, the Court has cautioned against expansive readings of Murray’s
Lessee by emphasizing that there was an “unbroken tradition” of executing
distress warrants without Article III that “long predat[ed] the founding.”

5
Case: 24-60040 Document: 230-1 Page: 6 Date Filed: 03/20/2026

No. 24-60040

Jarkesy, 603 U.S. at 128–29, 144 S. Ct. at 2132; Murray’s Lessee, 59 U.S. (18
How.) at 281 (“[T]he means provided by the act . . . do not differ in principle
from those employed in England from remote antiquity—and in many of the
States.”).
2.
The rising tide of public-rights jurisprudence reached its high-water
mark decades ago when the Supreme Court attempted to define “public
rights” as encompassing those instances in which Congress creates a “new
cause of action, and remedies therefor, unknown to the common law.” Atlas
Roofing Co. v. Occupational Safety and Health Rev. Comm’n, 430 U.S. 442,
461, 97 S. Ct. 1261, 1272 (1977). The adjudication in that case arose under
the Occupation Safety and Health Act of 1970 (“OSH Act”), an elaborate
federal regulatory regime designed to promote safe working conditions. Id.
at 444–45, 97 S. Ct. at 1263–64. The OSH Act directed that “[e]ach
[covered] employer . . . shall comply with occupational safety and health
standards” promulgated pursuant to its provisions. 29 U.S.C. § 654(a)(2).
Those provisions in turn authorized the Secretary of Labor to promulgate
agency rules, and a special commission was charged with prosecuting and
adjudicating alleged violations. Atlas Roofing, 430 U.S. at 445–46, 97 S. Ct.
at 1264. The commission imposed civil penalties on the Atlas Roofing
Company for violating a safety rule “requiring the sides of trenches in
unstable or soft material to be shored, . . . sloped, or otherwise supported by
means of sufficient strength to protect the employees working within them.”
Id. at 447, 97 S. Ct. at 1265 (internal quotations marks omitted). Atlas
Roofing argued that the adjudication involved private rights that entitled it to
an Article III court. Id. at 448–49, 97 S. Ct. at 1265–66. The Supreme Court
unanimously rejected that constitutional argument because, “when
Congress creates new statutory ‘public rights,’ it may assign their
adjudication to an administrative agency.” Id. at 455, 97 S. Ct. at 1269.

6
Case: 24-60040 Document: 230-1 Page: 7 Date Filed: 03/20/2026

No. 24-60040

The scope of Atlas Roofing was tested a decade later when the
Supreme Court considered whether the Constitution permitted a bankruptcy
court, an Article I adjunct to Article III courts, to adjudicate a claim for
fraudulent conveyance. See Granfinanciera, 492 U.S. at 36, 109 S. Ct. at 2787.
Six justices held it did not because “[t]here [was] no dispute that actions to
recover . . . fraudulent transfers were often brought at law in late 18th-century
England.” Id. at 43, 109 S. Ct. at 2791. The pertinent lesson from
Granfinanciera was that, despite uncertainty fostered by Atlas Roofing,
Congress cannot relegate actions that were essentially “suits at common
law” to proceedings outside of Article III. 5 Id. at 56, 109 S. Ct. at 2798.
3.
In light of this background, the Supreme Court in Jarkesy considered
whether the SEC could administratively adjudicate a civil penalty action for
securities fraud subject to deferential Article III review. With a few words of
caution, the Court warned that the public-rights doctrine “would swallow”
the ordinary Article III requirement “[w]ithout . . . close attention to the basis
for each asserted application of the doctrine.” Jarkesy, 603 U.S. at 131, 144
S. Ct. at 2134. The Court concluded that an Article III adjudication was
necessary in Jarkesy’s case because the securities-fraud laws “borrow[ed]
[their] cause of action from the common law” and were distinguishable from
claims that involve public rights. Id. at 136–37, 144 S. Ct. at 1237. Several
facts were identified by the Court as particularly important: (1) securities
fraud claims “target[ed] the same basic conduct as common law fraud”; (2)

_____________________
5
Most cases concerning the private/public rights distinction involve claims that
might have traditionally sounded at common law rather than equity. Because Article III
expressly confers exclusive jurisdiction on federal courts over cases that sound in law and
equity, any distinction would only become relevant if Intuit claimed a right to a jury trial
under the Seventh Amendment. But it has not done so.

7
Case: 24-60040 Document: 230-1 Page: 8 Date Filed: 03/20/2026

No. 24-60040

securities fraud laws “employ[ed] the same terms of art” as common law
fraud; (3) securities fraud actions “operate[d] pursuant to similar legal
principles” as common law fraud; and (4) civil penalties are a remedy that was
traditionally available in courts of law. Id. at 134, 144 S. Ct. at 2136 (emphasis
added).
The Court devoted an entire section of its opinion to distinguishing
Atlas Roofing from more recent cases. A lengthy paragraph explained the
distinctiveness of the OSH Act:
Unlike the claims in Granfinanciera and this action, the OSH
Act did not borrow its cause of action from the common law. .
. . [Its] standards br[ought] no common law soil with them.
Rather than reiterate common law terms of art, they instead
resembled a detailed building code. . . . The purpose of this
regime was not to enable the Federal Government to bring or
adjudicate claims that traced their ancestry to the common law.
. . . In both concept and execution, the [OSH] Act was self-
consciously novel.
Id. at 136, 144 S. Ct. at 2137. As the Court summed up, “The novel claims in
Atlas Roofing had never been brought in an Article III court.” Id. at 140, 144
S. Ct. at 2139. None of this could be said of securities fraud actions
prosecuted by SEC, which the Court concluded were not “unknown to the
common law.” Id. at 138, 144 S. Ct. at 2138 (citation omitted); see also Basic
Inc. v. Levinson, 485 U.S. 224, 253, 108 S. Ct. 978, 994 (1988) (White, J.,
concurring in part and dissenting in part) (“[T]he case law developed . . .
with respect to [the SEC antifraud provisions] has been based on . . .
common-law doctrines of fraud and deceit.”).
But the Court did not stop there. The Court cast doubt on whether
Atlas Roofing remains good law: “Atlas Roofing represents a departure from
our legal traditions . . . . Commentators . . . have often simply ignored the
case . . . . Others who have considered it have offered nothing but a variety of

8
Case: 24-60040 Document: 230-1 Page: 9 Date Filed: 03/20/2026

No. 24-60040

criticisms.” Jarkesy, 603 U.S. at 138 & n.4, 144 S. Ct. at 2138 & n.4 (“The
dissent chants ‘Atlas Roofing’ like a mantra, but no matter how many times it
repeats those words, it cannot give Atlas Roofing substance that it lacks.”).
The author of Atlas Roofing had already questioned its precedential value
years earlier. Granfinanciera, 492 U.S. at 79, 109 S. Ct. at 2810 (White, J.,
dissenting) (“Perhaps . . . Atlas Roofing is no longer good law after today’s
decision.”). Still, the Court stopped short of officially overruling Atlas
Roofing. See Jarkesy, 603 U.S. at 136, 144. S. Ct. at 2137 (“[W]e need not
reach the suggestion . . . that Tull and Granfinanciera effectively overruled
Atlas Roofing.”).
4.
These authorities are the backdrop for the conclusion that deceptive
advertising claims under the FTC Act are “in their nature” traditional
actions at law and equity and thus involve private rights that demand
adjudication in an Article III court. We reject FTC’s counterarguments that
would include its cease-and-desist proceeding among those identified by the
Supreme Court as involving public rights.
B.
Deceptive advertising claims brought under Section 5 require proof
that a material representation “was likely to mislead customers acting
reasonably under the circumstances.” FTC v. Tashman, 318 F.3d 1273, 1277
(11th Cir. 2003) (citing FTC v. World Travel Vacation Brokers, Inc., 861 F.2d
1020, 1029 (7th Cir. 1988)); see also FTC v. Pantron I Corp., 33 F.3d 1088,
1095 (9th Cir. 1994) (citing Cliffdale Assocs., 103 F.T.C. 110, 164–65 (1984)).
Several causes of action traditionally recognized by courts of common law
and equity required a similar showing, including the torts of deceit and fraud.
Eighteenth-century English courts held that an action for deceit lies at
common law whenever there is a “false affirmation, made by the defendant

9
Case: 24-60040 Document: 230-1 Page: 10 Date Filed: 03/20/2026

No. 24-60040

with intent to defraud the plaintiff, whereby the plaintiff receives
damage.” Pasley v. Freeman, 3 T. R. 51, 100 Eng. Rep. 450, 450 (K. B. 1789).
In this country, the Restatement (First) of Torts summarized the
longstanding claim for deceit in slightly different terms: a company that
“fraudulently represent[s] that [its] goods . . . have ingredients or qualities
which . . . they do not have” is liable in tort. Restatement (First) of
Torts § 761 (1939). American equity law, developed organically since the
Founding era, has accounted for tortious deceit in the commercial context of
deceptive advertising, where it was often called unfair competition. See, e.g.,
Motor Improvements v. A.C. Spark Plug Co., 80 F.2d 385, 386 (6th Cir. 1935)
(holding that where misleading ads caused “injury to the plaintiff and fraud
upon the public,” “equity should . . . enjoin the sale” of products until the
ads are changed); see also City of Carlsbad v. W.T. Thackeray & Co., 57 F. 18,
18–20 (N.D. Ill. 1891) (enjoining the defendant company from marketing its
salt under a name that might cause a consumer to believe it was made by the
plaintiff company). Accordingly, the original FTC Act proscribed deceptive
advertising as an “[u]nfair method[] of competition” under 15 U.S.C. §
45(a)(1).
FTC contends that deceit in this context was only actionable if a
company palmed off another’s goods as its own. See Am. Washboard Co. v.
Saginaw Mfg. Co., 103 F. 281, 284–85 (6th Cir. 1900). But FTC’s restrictive
construction is undermined by later decisions. See Motor Improvements, 80
F.2d at 386 (“[W]e cannot agree that the palming off by one competitor of
his goods as those of another is the sole test of unfair competition. While it
is a common method . . . it is not the sole method, certainly not the sole
ground, for equitable intervention . . . and we do not view American
Washboard . . . as holding that it is.”).
The elements of fraud, a tort that was traditionally actionable at
common law or equity depending on the circumstances, differ only slightly

10
Case: 24-60040 Document: 230-1 Page: 11 Date Filed: 03/20/2026

No. 24-60040

from those of deceit. Fraud is actionable when there was a material
representation, which was false, was known to be false when made or asserted
without knowledge of its truth, was intended to be acted upon, was relied
upon, and caused injury. See Smith v. Richards, 38 U.S. (13 Pet.) 26, 36 (1839)
(“If, indeed, a man . . . make[s] a false representation, whether knowingly or
not, by means of which he puts the party bargaining under a mistake upon the
terms of the bargain, it is a fraud, and relievable in equity.” (citing 1
Maddock’s Chancery 208 (1817))); see also FTC v. Algoma Lumber Co., 291
U.S. 67, 81, 54 S. Ct. 315, 321 (1934) (explaining in a case about misleading
marketing that, although certain “practice[s] condemned [may] not amount
to fraud as understood in courts of law,” “there is a kind of fraud, as courts
of equity have long perceived, in clinging to a benefit which is the product of
misrepresentation” (emphases added)).
Unlike these traditional actions, Section 5 deceptive advertising
claims do not require FTC to produce evidence of damage and fraudulent
intent. But the Commission still must show that reasonable customers were
likely to be misled by a false representation. Here, the Commission alleged
that Intuit falsely represented that TurboTax products were free, although
they are free only for a narrow group of customers. These allegations
correspond with the sine qua non of common law fraud and deceit: a material
representation that was false. Hence, claims of fraud, deceit, and deceptive
advertising share a common core. An equivalent level of overlap between
SEC securities fraud claims and common law fraud compelled the Supreme
Court’s conclusion that private rights were involved. Compare, e.g., Jarkesy,
603 U.S. at 116, 144 S. Ct. at 2125 (“Section 206(b) . . . prohibits investment
advisers from making ‘any untrue statement of a material fact’ . . . with
respect to investors or prospective investors.” (quoting 17 C.F.R. §
275.206(4)–8(a)(1))), with Pauwels v. Deloitte LLP, 83 F.4th 171, 189–90 (2d
Cir. 2023) (“To state a claim for fraud under New York law, a plaintiff must

11
Case: 24-60040 Document: 230-1 Page: 12 Date Filed: 03/20/2026

No. 24-60040

allege (1) a material misrepresentation or omission of fact; (2) which the
defendant knew to be false; (3) which the defendant made with the intent to
defraud; (4) upon which the plaintiff reasonably relied; and (5) which caused
injury to the plaintiff.” (quotation omitted)).
Striking similarities exist between FTC’s administrative complaint
and the Commission’s opinion, on one hand, and classic terms of art
associated with fraud and deceit. For example, FTC alleged that Intuit “has
engaged in, and is engaging in, deceptive business practices in the advertising,
marketing, distribution, and sale of TurboTax,” and “Intuit baits consumers
with deceptive ads and then compound[s] the deception with more false
claims and buried disclosures.” Intuit, Inc., 2022 WL 1044862, at *1, *5
(F.T.C. Mar. 28, 2022) (Comm’n Complaint) (emphases added); see also
Intuit, Inc., 2024 WL 382358, at *14 n.12 (F.T.C. Jan. 22, 2024) (Comm’n
Opinion) (citing a state-led lawsuit against Intuit for the same conduct that
alleged “unfair, fraudulent, and deceptive business acts and practices”
(emphasis added)). The Commission concluded in its opinion that Intuit
employed unlawful business practices by running a “broad, enduring, and
willful” “deceptive ad campaign.” Intuit, Inc., 2024 WL 382358, at *58
(emphasis added). 6 When rejecting Intuit’s argument that few consumer
complaints had been made, the Commission explained that “consumers’
willingness to complain about fraud varies widely . . . with mass frauds
associated with the lowest complaint rates.” Id. at *35 (emphases added).

_____________________
6
Although this court has never addressed the issue, a minority of district courts
has applied the heightened pleading requirements from Fed. R. Civ. P. 9(b) to Section
5 deceptive advertising claims that “soun[d] in fraud.” See FTC v. Lights of Am., Inc., 760
F. Supp. 2d 848, 852–55 (C.D. Cal. 2010); FTC v. D-Link Sys., Inc., No. 3:17-CV-00039-
JD, 2017 WL 4150873, at *2 (N.D. Cal. Sept. 19, 2017).

12
Case: 24-60040 Document: 230-1 Page: 13 Date Filed: 03/20/2026

No. 24-60040

In Jarkesy, the Court also relied on similarities between SEC civil
penalties and “money damages,” “the prototypical common law remedy.”
603 U.S. at 123, 144 S. Ct. at 2129. Here, too, the agency’s remedy displays
the similarities between cease-and-desist orders and equitable remedies.
Courts have compared FTC Section 5 cease-and-desist orders to the
traditional remedies that were available in courts of equity. See, e.g., Golden
State Bottling Co. v. NLRB, 414 U.S. 168, 178, 94 S. Ct. 414, 422 (1973)
(“Regal Knitwear treated a Board cease-and-desist order as ‘somewhat
analogous’ to . . . an injunction.” (italics added) (quoting Regal Knitwear Co.
v. NLRB, 324 U.S. 9, 14, 65 S. Ct. 478, 481 (1945))); see also NLRB v. Express
Pub. Co., 312 U.S. 426, 433, 61 S. Ct. 693, 698 (1941) (noting that a cease-
and-desist order, “like the injunction order of a court, [must] state with
reasonable specificity the acts which the respondent is to do or refrain from
doing”); Globe Cotton Mills v. NLRB, 103 F.2d 91, 93 (5th Cir. 1939)
(explaining that a cease-and-desist order is “analogous to an injunction”);
Amy Marshak, The Federal Trade Commission on the Frontier: Suggestions for
the Use of Section 5, 86 N.Y.U. L. Rev. 1121, 1128 (2011) (“The
Commission’s primary tool is a cease-and-desist order, which is largely
equivalent to an injunction . . . .” (citations omitted)).
Despite the demonstrated similarities between Section 5 deceptive
advertising claims and common-law fraud and deceit, FTC contends that
there is no meaningful connection. On the contrary, courts observed in the
years immediately following the FTC Act’s passage in 1914 that its “unfair
methods of competition” standard was derived from the common law. The
Seventh Circuit was unequivocal: “The [C]ommissioners . . . are to exercise
their common sense, as informed by their knowledge of the . . . common
law . . . . The trader is entitled to his day in court, and there the same
principles and tests that have been applied under the common law . . . are
expected by Congress to control.” Sears, Roebuck & Co. v. FTC, 258 F. 307,

13
Case: 24-60040 Document: 230-1 Page: 14 Date Filed: 03/20/2026

No. 24-60040

311 (7th Cir. 1919). Initially, the Supreme Court concurred, observing that
the unfair-methods-of-competition standard permitted the Commission to
address traditional wrongs that had been previously identified by the
judiciary. See FTC v. Gratz, 253 U.S. 421, 427, 40 S. Ct. 572, 575 (1920)
(“The words ‘unfair method of competition’ . . . are clearly inapplicable to
practices never heretofore regarded as opposed to good morals because
characterized by deception, bad faith, fraud, or oppression . . . .”). And
during this era of its FTC Act jurisprudence, the Court held that deceptive
advertising was a traditional wrong that the Commission could address. See
FTC v. Winsted Hosiery Co., 258 U.S. 483, 494, 42 S. Ct. 384, 386 (1922)
(Brandeis, J.) (“That a person is a wrongdoer who so furnishes another with
the means of consummating a fraud has long been a part of the law of unfair
competition.” (emphasis added)). 7 Only after identifying deceptive
advertising as a traditional wrong did the Court expand its understanding of
the FTC Act and hold “[n]either the language nor the history of the act
suggests that Congress intended to confine the forbidden methods to fixed
and unyielding categories . . . . The act undoubtedly was aimed at all the
familiar methods of law violation . . . . But . . . it also had a broader
purpose . . . .” FTC v. R.F. Keppel & Bro., 291 U.S. 304, 310, 54 S. Ct. 423,
425 (1934).

_____________________
7
It makes no difference that the FTC bases its deceptive advertising claims in this
case on a separate phrase that Congress later added to the FTC Act for “unfair or
deceptive acts or practices.” 15 U.S.C. § 45(a)(1). The Wheeler-Lea Act of 1938, which
codified this addition, did nothing to sever the FTC Act from its well-recognized common
law roots; it merely expanded FTC authority by eliminating a requirement under the
“unfair methods of competition” standard that the FTC prove harm to competition. See
Exposition Press, Inc. v. FTC, 295 F.2d 869, 876 (2d Cir. 1961) (Friendly, J., dissenting)
(“[T]he 1938 amendment, designed to eliminate the need of proving a potential adverse
effect on competition, did not eliminate the need of establishing the potentiality of the kind
of adverse effect of which the law customarily takes note.”).

14
Case: 24-60040 Document: 230-1 Page: 15 Date Filed: 03/20/2026

No. 24-60040

FTC attempts to distinguish its claims in this case from various
traditional actions, including those already discussed. It contends, for
example, that common law remedies for deceptive advertising required proof
that sales “would have gone to the plaintiff rather than to other competitors
in the market.” Mosler Safe Co. v. Ely-Norris Safe Co., 273 U.S. 132, 134, 47
S. Ct. 314, 314 (1927). Further, common-law deceit often proved incapable
of affording plaintiffs relief because merchants’ opinions were protected even
if they misrepresented a product; the principle of caveat emptor was
detrimental to consumers; and privity of contract was required. The
Commission stresses that none of these obstacles stand in the way of
deceptive advertising claims brought under Section 5.
The technical distinctions that FTC cites fail to disprove that private
rights are at stake. Critically, the Court in Jarkesy identified similar
distinctions between federal securities fraud and common law fraud. 603
U.S. at 126, 144 S. Ct. at 2131 (“[F]ederal securities fraud and common law
fraud are [not] identical. In some respects, federal securities fraud is
narrower . . . . In other respects, federal securities fraud is broader.”).
Specifically, the Court acknowledged that SEC enjoyed a more lenient
burden of proof and could pursue civil penalties without proving harm. Id.
Yet the Court held that the “relationship” between securities fraud actions
and common law fraud was “close,” “confirm[ing]” that an SEC action is
“legal in nature.” Id. (citation omitted). That is no less true here. There is
a significant difference between circumstances in which relief has been
traditionally limited, or otherwise difficult to obtain, and those in which a
claim is wholly unavailable, unrecognized by the common law, or unmoored
from any kind of traditional action. Mere obstacles to relief do not compel
the conclusion that there was no actionable wrong, and eliminating obstacles
to relief does not make an actionable wrong no longer “traditional” in its
nature. See also AT&T, Inc. v. FCC, 149 F.4th 491, 499 (5th Cir. 2025)

15
Case: 24-60040 Document: 230-1 Page: 16 Date Filed: 03/20/2026

No. 24-60040

(“However ‘technical’ section 222 may be, its substance is closely analogous
to a negligence action . . . . [T]he statutory action need not be ‘identical’ to a
common law analogue.”), cert. granted sub nom., FCC v. AT&T, Inc., No. 25-
406, 2026 WL 73092 (Jan. 9, 2026).
FTC avoids the conclusion that private rights are involved by
comparing its Section 5 deception standard to the workplace-safety standards
in Atlas Roofing, which the Court held implicated public rights. But a blanket
prohibition on “unfair or deceptive acts or practices” does not remotely
“resemble[] a detailed building code” like the workplace safety standards
promulgated under the OSH Act. Jarkesy, 603 U.S. at 137, 144 S. Ct. at 2137.
Moreover, the Court emphasized that the “novel claims in Atlas Roofing had
never been brought in an Article III court.” Id. at 140, 144 S. Ct. at 2139.
Not so here. Since the 1970s, the FTC Act has unambiguously authorized
the Commission to prosecute Section 5 deceptive advertising claims in
federal court. 15 U.S.C. § 53(b); see AMG Cap. Mgmt., LLC v. FTC, 593 U.S.
67, 73–74, 141 S. Ct. 1341, 1346–47 (2021) (“Beginning in the late 1970s, the
Commission began to use . . . the words ‘permanent injunction[]’ to obtain
court orders for redress of various kinds . . . without prior use of the
administrative proceedings in § 5 . . . . [T]he Commission presently uses
§ 13(b) . . . with great frequency.” (citations omitted)). And in Jarkesy, the
Court noted, “Congress had authorized the SEC to bring [fraud] actions in
Article III courts and still authorizes the SEC to do so today.” 603 U.S. at
140, 144 S. Ct. at 2139 (citation omitted).
In sum, there is overwhelming evidence that Section 5 of the FTC
Act did not create a new duty for merchants to refrain from deceptive
advertising. That duty long predated the FTC Act and could be enforced by
private parties in actions at common law or equity for fraud, deceit, or unfair
competition. The Commission contends that the FTC Act “expunged”
“old soil,” but this ipse dixit cannot overcome the weight of contrary

16
Case: 24-60040 Document: 230-1 Page: 17 Date Filed: 03/20/2026

No. 24-60040

evidence. Section 5 may well constitute a more effective tool than the common
law for combatting deceptive advertising. Ultimately, that is beside the point.
Congress can modify the common law and deal the public a better hand by
expanding remedies. See Pan Am. World Airways, Inc. v. United States, 371
U.S. 296, 306, 83 S. Ct. 476, 483 (1963) (explaining that “unfair practices”
is a “broader concept than the common-law idea of unfair competition”
(citation omitted)). But expanding remedies does not allow Congress to
relegate claims of common law pedigree to adjudication by non-Article III
bureaucrats. FTC’s action here (1) targets the same conduct as traditional
actions; (2) operates pursuant to similar principles; and (3) invokes
recognized terms of art. The Commission does not (and could not) contend
that this is a matter in which “the political branches had traditionally held
exclusive power.” Jarkesy, 603 U.S. at 130, 144 S. Ct. at 2133 (citing Ex parte
Bakelite Corp., 279 U.S. 438, 458, 460–61, 49 S. Ct. 411, 416–17 (1929)). The
close relationship between Section 5 and traditional actions proves that
private rights are at stake.
C.
FTC and amici advance a litany of other arguments in hopes of
circumventing Jarkesy and fortifying the claim that it adjudicated public
rights. We take them in turn.
1.
FTC argues that, because this proceeding involves public rights,
internal agency adjudication is fine. But “since Murray’s Lessee,” the
Supreme Court has “typically evaluated the legal basis for the assertion of
the doctrine with care.” Id. at 131, 144 S. Ct. at 2133–34. “The public rights
exception is, after all, an exception.” Id., 144 S. Ct. at 2134 (emphasis in
original). We exercise similar caution here. The Commission posits that
public rights are at issue because Section 5 “permits the government to

17
Case: 24-60040 Document: 230-1 Page: 18 Date Filed: 03/20/2026

No. 24-60040

pursue equitable remedies on the public’s behalf.” The Court, however,
repudiated the same circular definition of public rights in Jarkesy. Id. at 139,
144 S. Ct. at 2138–39 (“Even as Atlas Roofing invoked the public rights
exception, the definition it offered . . . was circular. The exception applied
. . . in cases in which . . . the Government sues in its sovereign capacity to
enforce public rights created by statutes.” (quotations omitted)). The
Constitution does not imply a “public interest” exception to Article III
“judicial Power” for a legal claim that otherwise “trace[s] [its] ancestry to
[actions recognized at] the common law.” Id. at 137, 144 S. Ct. at 2137.
The Commission relies on FTC v. Klesner, 280 U.S. 19, 25–27, 50
S. Ct. 1, 3 (1929), an enforcement action dismissed because FTC failed to
explain how the action was in the public interest. The Court briefly
contrasted actions “in the public interest” with those brought by “private
traders to enjoin unfair competition,” where invasion of a “private right”
must be shown “because otherwise the plaintiff has not suffered an injury.”
Id. at 27, 50 S. Ct. at 3. But the Court did not discuss Article III limits, nor
did it suggest that FTC proceedings could never implicate private rights.
Nothing in the Court’s more recent Article III jurisprudence indicates that
private rights hinge solely on whether an individual suffered harm. In fact,
Jarkesy held that SEC’s action involved private rights even though courts
had “not typically interpreted federal securities fraud to require a showing of
harm to be actionable by the SEC.” 603 U.S. at 126, 144 S. Ct. at 2131.
Klesner is not as broad as FTC contends; the Court merely explained that
FTC actions are not conditioned on there being a private right at stake, and it
acknowledged that, even in private actions, “proof that the public is deceived
is an essential element of [unfair competition].” 280 U.S. at 27, 50 S. Ct. at
3. The instant proceeding involves private rights under the Court’s caselaw
because deceptive advertising claims relate to traditional actions, even
though they vindicate the public interest.

18
Case: 24-60040 Document: 230-1 Page: 19 Date Filed: 03/20/2026

No. 24-60040

FTC and amici invoke cases that they characterize as involving public
rights or otherwise excusing the Article III tribunal. But none of the cases
concern, or are even tangentially related to, deceptive advertising actions. In
Union Bridge Co. v. United States, 204 U.S. 364, 27 S. Ct. 367 (1907), for
example, the Court affirmed the Secretary of War’s determination to
eliminate an unreasonable obstruction to the free navigation of the Allegheny
River. Regulating the flow of commerce on navigable rivers is closely
analogous to traditional public rights recognized by Jarkesy. Similarly, Block
v. Hirsh, 256 U.S. 135, 41 S. Ct. 458 (1921), upheld a Washington, D.C., rent
control law administered by a government agency, which dated to the
exigencies of World War I. The case turned on interference with property
rights, not on the divestiture of Article III federal courts, and it stands in
tension with more recent Court precedents. See Granfinanciera, 492 U.S. at
71 n.1, 109 S. Ct. at 2806 n.1 (White, J., dissenting) (suggesting that the
Court’s opinion “c[ould] be read as overruling or severely limiting the
relevant portions” of several cases, including Block). In Crowell v. Benson,
285 U.S. 22, 52 S. Ct. 285 (1932), the Court approved administrative
adjudication of disputes under the Longshoremen’s and Harbor Workers’
Compensation Act. Id. at 36, 52 S. Ct. at 286–87. In the course of explaining
its conclusion, the Court cited one FTC case in a footnote as a “[f]amiliar
illustration[]” of an administrative agency’s adjudicating public rights. Id. at
50–51 & 51 n.13, 52 S. Ct. at 292 & n.13 (citing Int’l Shoe Co. v. FTC, 280 U.S.
291, 50 S. Ct. 89 (1930)). The International Shoe case, however, concerned
antitrust issues, not the scope of non-Article III adjudication. As Justice
Gorsuch pointed out, “Crowell . . . fell within federal courts’ admiralty
jurisdiction, and tribunals sitting in admiralty in England and America alike
had long heard certain matters falling within the public rights exception.”
Jarkesy, 603 U.S. at 156, 144 S. Ct. at 2148 (Gorsuch, J., concurring) (citation

19
Case: 24-60040 Document: 230-1 Page: 20 Date Filed: 03/20/2026

No. 24-60040

omitted). Crowell thus says very little to support FTC’s administrative
adjudication proceeding.
Contrary to FTC’s position, the Supreme Court’s more recent
precedents also fail to support its use of in-house ALJs. In Thomas v. Union
Carbide Agric. Prods. Co., 473 U.S. 568, 105 S. Ct. 3325 (1985), the Court
upheld binding arbitration to allocate compensation among prospective
licensees in connection with the Federal Insecticide, Fungicide, and
Rodenticide Act. Id. at 571–74, 105 S. Ct. at 3327–30. Consent was key to
the Court’s decision. See id. at 589, 105 S. Ct. at 3337 (“Congress has the
power . . . to authorize an agency administering a complex regulatory scheme
to allocate costs and benefits among voluntary participants in the program
without providing an Article III adjudication. It also has the power to
condition issuance of registrations or licenses on compliance with agency
procedures.” (emphasis added)); see also Wellness Int’l Network, Ltd. v.
Sharif, 575 U.S. 665, 674, 135 S. Ct. 1932, 1942 (2015) (“[D]uring the early
years of the Republic, federal courts, with the consent of the litigants, regularly
referred adjudication of entire disputes to non-Article III referees, masters,
or arbitrators . . . .” (emphasis added) (quotation omitted)). Consent is
lacking here.
FTC fares no better with respect to Commodity Futures Trading
Comm’n v. Schor, 478 U.S. 833, 106 S. Ct. 3245 (1986), where the Court
upheld the Commodity Futures Trading Commission’s (“CFTC”)
adjudication of a common law counterclaim in a CFTC administrative-
reparations proceeding. For several reasons, the Court concluded that Schor
waived any right he may have possessed to try the counterclaim before an
Article III court. Id. at 849, 106 S. Ct. at 3256; see also id., 106 S. Ct. at 3255–
56 (“[T]he relevance of concepts of waiver . . . is demonstrated
by . . . Northern Pipeline, in which the absence of consent to an initial
adjudication . . . was relied on as a significant factor in determining that

20
Case: 24-60040 Document: 230-1 Page: 21 Date Filed: 03/20/2026

No. 24-60040

Article III forbade such adjudication.” (citations omitted)); see also Wellness
Int’l Network, 575 U.S. at 676, 135 S. Ct. at 1943 (“Leaning heavily on the
importance of Schor’s consent, the Court found no [Article III] structural
concern . . . .”). Schor is inapplicable because Intuit did not file claims before
the Commission, and Intuit has consistently maintained its right to an Article
III adjudication.
The remaining cases that FTC cites for its broad conception of public
rights merit little discussion. The Court’s statement that the FTC does not
“vindicate private rights,” but is concerned with “the protection of the
public interest,” had to do with the Commission’s power to authorize a
name-registration proceeding, not with its ability to adjudicate in lieu of
Article III courts. See Am. Airlines v. N. Am. Airlines, 351 U.S. 79, 80–81, 83,
85, 76 S. Ct. 600, 602–05, (1956). The decision in Akzo N.V. v. Int’l Trade
Comm’n, 808 F.2d 1471, 1488 (Fed. Cir. 1986), involved plenary
congressional power over commerce with foreign nations. Other cases
implicated well-known public-rights exceptions to Article III. See Oil States
Energy Servs., LLC, 584 U.S. at 334–37, 138 S. Ct. at 1373–75 (inter partes
patent review); Marine Shale Processors, Inc. v. EPA, 81 F.3d 1371, 1376 (5th
Cir. 1996) (adjudication of government permits); see also AT&T, Inc., 149
F.4th at 500 (listing traditional public-rights cases identified in Jarkesy such
as “revenue collection, foreign commerce, immigration, tariffs, tribal
relations, public lands, public benefits, and patents”).
2.
In a post-argument letter, FTC cites a handful of decisions from other
circuits that ostensibly rejected “[s]oon after the FTC Act’s passage . . . the
claim that FTC adjudication violates Article III by vesting the Commission
with ‘judicial powers.’” See Nat’l Harness Mfrs.’ Ass’n v. FTC, 268 F. 705,
707 (6th Cir. 1920) (“The act delegates to the commission no judicial

21
Case: 24-60040 Document: 230-1 Page: 22 Date Filed: 03/20/2026

No. 24-60040

powers . . . .”); Ark. Wholesale Grocers’ Ass’n v. FTC, 18 F.2d 866, 870 (8th
Cir. 1927) (“The [FTC] is an administrative body; it is a fact-finding body.
It . . . is within the power of Congress to delegate to an administrative body
. . . the duty and power of finding facts upon which subsequent orders may be
made.”); FTC v. Balme, 23 F.2d 615, 621 (2d Cir. 1928) (“Section 5 has so
often been considered and held to be constitutional by the courts that it is not
necessary now to consider these objections to its constitutionality.”); FTC
v. A. McLean & Son, 84 F.2d 910, 912 (7th Cir. 1936) (“They conten[d] that
section 5 of the act violates the federal constitutional mandate of separation
of governmental functions . . . . We think there is no merit in this
contention.”); Ostler Candy Co. v. FTC, 106 F.2d 962, 964 (10th Cir. 1939)
(“[T]he [cease-and-desist] order shall become final upon the expiration of
the time allowed for the filing of a petition for review . . . . [Tha]t does not
transform the order into the equivalent of a . . . judgment . . . and the
provision for judicial review meets the requirements of due process.”).
Although these cases show that courts rejected challenges to FTC
adjudication in its earliest days, they do not expressly consider the issue
through the private- and public-rights framework; the Court’s decision in
Jarkesy therefore calls these cases into question.
Relatedly, FTC urges reliance on a district court opinion that
predated Jarkesy in the Supreme Court but purported to reject the private
rights basis for Article III adjudication. See Meta Platforms, Inc. v. FTC, 723
F. Supp. 3d 64, 90–93 (D.D.C. 2024), aff’d, 2024 WL 1549732, at *3 (D.C.
Cir. 2024) (unpublished) (per curiam). The decision is not binding on this
court, was framed in a different procedural posture, and pertinent to our
conclusion, acknowledged that the “common law tort of deceit and a Section
5 violation are similar.” See id. at 92.

22
Case: 24-60040 Document: 230-1 Page: 23 Date Filed: 03/20/2026

No. 24-60040

3.
Attempting to put this case in the Atlas Roofing and Union Bridge
public rights camp, FTC also cites cases where the Court explained that
Section 5 does not require the Commission to limit its regulation to
traditional wrongs. See, e.g., Keppel, 291 U.S. at 310, 54 S. Ct. at 425
(“Neither the language nor the history of the act suggests that Congress
intended to confine the forbidden methods to fixed and unyielding
categories.”); FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 239–40, 92
S. Ct. 898, 903 (1972) (Congress “explicitly considered, and rejected, the
notion that it reduce the ambiguity of the phrase ‘unfair methods of
competition’ by tying the concept of unfairness to a common-
law . . . standard . . . .”). These are inapposite. Neither case involved the
Commission’s regulation of deceptive advertising, and neither discussed
whether deceptive advertising was considered a traditional wrong at common
law. Section 5 may authorize FTC to assert certain claims unknown to the
common law (we need not consider the constitutionality of those other cases
today), but this case deals with deceptive advertising. As discussed above,
deceptive advertising actions relate to traditional actions, have common law
roots, and implicate private rights.
FTC falls back on the proposition that Congress has authorized
agency adjudication for 110 years, and eliminating its adjudicative authority
would largely “dismantle” the FTC Act. That purposive argument is wrong
for several reasons. First, the Supreme Court has said it is “unclear how
practice could transmute a private right into a public one,” and “practical
considerations alone can[not] justify extending the scope of the public rights
exception.” Jarkesy, 603 U.S. at 131 n.2, 132, 144 S. Ct. at 2134 & n.2
(quotations omitted). Moreover, “the presence of the United States as a
proper party to the proceeding is . . . [in]sufficient” by itself to implicate
public rights. Id. at 135, 144 S. Ct. at 2136 (quotation omitted). Equally

23
Case: 24-60040 Document: 230-1 Page: 24 Date Filed: 03/20/2026

No. 24-60040

important, since the 1970s, the FTC has had the power to “proceed directly
to court (prior to issuing a cease and desist order) to obtain a ‘temporary
restraining order or a preliminary injunction,’ and . . . ‘in proper cases,’ to
obtain a court-ordered ‘permanent injunction.’” AMG Cap. Mgmt., LLC,
593 U.S. at 72, 141 S. Ct. at 1346 (2021) (quoting 15 U.S.C. § 53(b)). And
finally, this case determines FTC’s authority to adjudicate only deceptive
advertising claims, 15 U.S.C. § 45(a)(2). We do not decide the same question
for any other “unfair methods of competition” or other “unfair or deceptive
acts or practices.” Id. § 45(a)(1).
D.
Intuit seeks reversal of the FTC’s cease-and-desist order with
instructions to dismiss. Dismissal is premature. We hold that FTC’s
enforcement action must proceed in federal court. Several consequences
may follow from this: the standard of proof required on remand may be
elevated from substantial evidence to a preponderance; the agency will have
to explain the necessity of any order, given that Intuit stopped running the
offending ads years ago; and the practicability, scope, and longevity of a
cease-and-desist order will have to be reconsidered. These “known
unknowns” require that we pretermit decision on issues that may arise on
remand.
III. CONCLUSION
Caselaw from soon after the passage of the FTC Act reflects a
widespread understanding that the statute encompassed common law actions
for “deceit,” “fraud,” and “unfair use.” Deceptive advertising claims
enforceable by the FTC arose from these traditional concepts. As former
FTC Chair Timothy Muris put it, the Commission “help[s] to reinforce the
common law rules of exchange” when it acts under its authority to “stop
unfair or deceptive acts or practices.” Timothy Muris, Chairman, Fed.

24
Case: 24-60040 Document: 230-1 Page: 25 Date Filed: 03/20/2026

No. 24-60040

Trade Comm’n, Remarks before the Aspen Summit, Cyberspace and the
American Dream, The Progress and Freedom Foundation, 2003 WL 21979851,
at *6 (Aug. 19, 2003). Precedent, particularly the Jarkesy decision, confirms
that FTC’s adjudication of deceptive advertising claims does not involve
public rights, and the agency must therefore redress deceptive advertising in
Article III courts.
For the foregoing reasons, we GRANT Intuit’s petition for review,
VACATE the order below, and REMAND to FTC for proceedings
consistent with this opinion.

25
Case: 24-60040 Document: 230-1 Page: 26 Date Filed: 03/20/2026

No. 24-60040

James C. Ho, Circuit Judge, concurring:
Our Constitution establishes three branches of government, not four.
See, e.g., Ameron, Inc. v. U.S. Army Corps of Engineers, 787 F.2d 875, 892 (3rd
Cir. 1986) (Becker, J., concurring in part); Ass’n of American Railroads v. U.S.
Dep’t of Transp., 821 F.3d 19, 30–31 (D.C. Cir. 2016); Consumers’ Research v.
FCC, 109 F.4th 743, 787 (5th Cir. 2024) (Ho, J., concurring). It vests all of
the legislative powers granted by our Nation’s charter in Congress. See U.S.
Const. art. I, § 1. It vests the executive power of the United States in the
President. See id. art. II, § 1. And it vests the judicial power of the United
States in the Supreme Court and in such inferior courts as Congress may
establish. See id. art. III, § 1.
Enforcing the separation of powers “isn’t about protecting
institutional prerogatives or governmental turf.” Gundy v. United States, 588
U.S. 128, 156 (2019) (Gorsuch, J., dissenting). Our Founders separated
power to preserve liberty. “By diffusing power across the three rival
branches of government, we make it difficult for government to gang up on
the citizen.” Voices for Int’l Bus. and Educ., Inc. v. NLRB, 905 F.3d 770, 780–
81 (5th Cir. 2018) (Ho, J., concurring).
If the Constitution separates power to preserve liberty, then the
Federal Trade Commission Act of 1914 combines power to undermine
liberty. See, e.g., PHH Corp. v. CFPB, 881 F.3d 75, 169 (D.C. Cir. 2018)
(Kavanaugh, J., dissenting) (agencies like the FTC “exercise[] combined
powers: the executive power of enforcement, the legislative power of issuing
binding legal rules, and the judicial power of deciding adjudications”).
Because of administrative agencies like the FTC, Americans are increasingly
governed by a “headless fourth branch of government”—“a potent brew of
executive, legislative, and judicial power.” City of Arlington v. FCC, 569 U.S.
290, 314, 327 (2013) (Roberts, C.J., dissenting).

26
Case: 24-60040 Document: 230-1 Page: 27 Date Filed: 03/20/2026

No. 24-60040

Our Founders would’ve been deeply troubled by a creature like the
FTC. James Madison famously observed that the “accumulation of all
powers, legislative, executive, and judiciary, in the same hands, . . . may justly
be pronounced the very definition of tyranny.” The Federalist No.
47, at 324 (J. Cooke ed. 1961). One member of the First Congress warned
that such consolidations of power would become “a monster of a peculiar
enormity,” with “two heads, three heads, or four heads,” or perhaps
“without any head at all.” 1 Annals of Cong. 531 (1789) (statement of Rep.
Vining). Fortunately, just as the three-headed beast that terrorized Harry
Potter and his friends could be put to sleep simply by playing music, see
Harry Potter and the Sorcerer’s Stone 275–76 (1998), all we
need to do to restrain the FTC is to restore the Constitution.
The FTC’s “combined powers” present not one, but multiple
constitutional challenges. To the extent that the Commission promulgates
legal rules governing private activity, it challenges the vesting of legislative
power in the Congress. To the extent that members of the FTC enforce the
law while insulated from removal by the President, it challenges the vesting
of Article II power in our Nation’s Chief Executive. And to the extent that
private rights are adjudicated in tribunals controlled by the Commission, it
challenges the vesting of the judicial power in the federal courts.
The Supreme Court is presently considering whether the insulation of
FTC officials from Presidential removal can be reconciled with Article II. See
Trump v. Slaughter, 146 S. Ct. 18 (2025) (granting certiorari to decide
whether Humphrey’s Executor v. United States, 295 U.S. 602 (1935), should
be overruled). See also Feds for Medical Freedom v. Biden, 63 F.4th 366, 390
(5th Cir. 2023) (en banc) (Ho, J., concurring) (“[T]he President should
possess the constitutional authority under Article II to remove his
subordinates from office. In reality, however, the President actually controls

27
Case: 24-60040 Document: 230-1 Page: 28 Date Filed: 03/20/2026

No. 24-60040

surprisingly little of the Executive Branch. . . . And that presents a rather
curious distortion of our constitutional structure.”) (citations omitted).
Meanwhile, our court today confronts the challenges that the FTC’s
adjudicative powers present to Article III. “Under our Constitution, the
‘judicial power’ belongs to Article III courts and cannot be shared with the
Legislature or the Executive.” B & B Hardware, Inc. v. Hargis Industries, Inc.,
575 U.S. 138, 171 (2015) (Thomas, J., dissenting). Agency adjudication
undermines judicial independence and impartiality by subjecting the exercise
of judicial power to the agency’s will. It “threatens to sap the judicial power
as it exists under the Federal Constitution, and to establish a government of
a bureaucratic character alien to our own system.” Id. at 173 (quotations
omitted).
Our Founders did not “take it for granted . . . that independent judges
will hear our cases and controversies.” Oil States Energy Services, LLC v.
Greene’s Energy Group, LLC, 584 U.S. 325, 346 (2018) (Gorsuch, J.,
dissenting). “Before the Revolution, colonial judges depended on the Crown
for their tenure and salary and often enough their decisions followed their
interests.” Id. “The problem was so serious that the founders cited it in
their Declaration of Independence (see ¶ 11).” Id. They “went to great
lengths to guarantee a degree of judicial independence for future generations
that they themselves had not experienced.” Id.
That said, Supreme Court precedent has long “recognized a class of
cases concerning what [the Court has] called ‘public rights,’” which need
not be adjudicated in Article III tribunals. SEC v. Jarkesy, 603 U.S. 109, 128
(2024). “Such matters historically could have been determined exclusively
by the executive and legislative branches, even when they were presented in
such form that the judicial power was capable of acting on them.” Id.
(quotations omitted).

28
Case: 24-60040 Document: 230-1 Page: 29 Date Filed: 03/20/2026

No. 24-60040

This so-called “public rights exception” to Article III finds firm
support in Supreme Court precedent. See id. at 127–32. But “[i]t has no
textual basis in the Constitution.” Id. at 131. It “must therefore derive
instead from background legal principles.” Id. “Without such close
attention to the basis for each asserted application of the doctrine, the
exception would swallow the rule.” Id. See also Calcutt v. FDIC, 37 F.4th
293, 349 (6th Cir. 2022) (Murphy, J., dissenting) (“There must be some limit
to the government’s ability to dissolve the Constitution’s usual separation-
of-powers and due-process protections by waving a nebulous ‘public rights’
flag at a court.”).
So if the exception “allow[s] the Executive Branch to resolve certain
matters free from judicial involvement in the first instance,” then any
attempt to invoke that exception had better be supported by a “serious and
unbroken historical pedigree.” Jarkesy, 603 U.S. at 152–53 (Gorsuch, J.,
concurring). “[P]ublic rights are a narrow class defined and limited by
history” and “has traditionally included the collection of revenue, customs
enforcement, immigration, and the grant of public benefits.” Id.
As our court rightly concludes, the FTC action presented here falls
far short of the rigorous historical standard required by Supreme Court
precedent. Accordingly, I’m pleased to join the court’s decision today in full.