(The Center Square) – For the second time in a little more than a month, Ohio Attorney General Dave Yost is backing Cincinnati-based grocery giant Kroger in its fight with the federal government.
In a brief filed in the U.S. District Court of Southern Ohio, Yost sided with Kroger’s argument challenging the constitutionality of the Federal Trade Commission’s administrative proceedings regarding the planned Kroger-Albertsons merger.
Yost’s brief, signed by 11 other state attorneys general, supports Kroger’s claim that an FTC tribunal of administrative law judges violates the constitution’s separation of powers.
“The FTC’s judges are part of the executive branch, and that means they’re supposed to be subject to removal by the president,” Yost said. “Their multilayered protections from removal undermine the president’s authority and violate the constitution.”
The brief says the constitution generally gives the president unrestricted power to remove executive branch officers. Although the FTC’s administrative law judges fall under the executive branch, they are shielded from presidential removal and “sit outside the three-branch structure like part of a ‘headless fourth branch of government,’” the brief also says.
In mid-August, Yost filed a brief in the U.S. District Court in Oregon saying the federal government should not delay a planned merger between Kroger and Albertsons.
Kroger announced plans to buy Boise, Idaho-based Albertsons in October 2022 for $24.6 billion. If allowed to go through, the merger would create a company with nearly 5,000 stores and 700,000 employees.
Last month, the two announced plans to sell nearly 600 stores if authorities approve the merger.
The Federal Trade Commission opposed the merger, saying it would lead to higher consumer prices because of less competition. It filed an antitrust lawsuit to block the merger.
Attorneys general from Alabama, Georgia, Iowa, Louisiana, Montana, Nebraska, Oklahoma, South Carolina, Tennessee, Texas and West Virginia joined Yost in the most-recent filing.
