The Case Without a Judge [View all]

https://prospect.org/justice/2025-03-21-case-without-a-judge-ftc/

Last September, the Federal Trade Commission sued three leading pharmacy benefit managers (PBMs) for conspiring to raise insulin prices by as much as 1,200 percent over the past two decades. It was a pretty juicy case: FTC staff had evidence that PBMs deliberately excluded the lowest-price insulins from their lists of which drugs they would cover, and instead preferred the highest-price insulins, which could pay out the highest rebates and therefore give the companies the biggest profits. There were chats where PBM executives said they were “addicted to rebates” and eager to “drink down the tasty … rebates.”

The case was issued as an “administrative complaint,” meaning that it goes through a different procedure than the federal courts. Formally speaking, an administrative law judge hears the case, but the commissioners of the FTC play a role as well. According to the standard procedure for an administrative complaint, the commissioners determine the schedule of the proceeding, issue final decisions on the scope of the findings and conclusions, allow intervenors to participate in the case, rule on motions filed by either side, and hear appeals to the administrative law judge’s rulings. In this sense, the commissioners are acting as judges for the purpose of this proceeding, and it’s a long-standing practice.

Only now, because of Donald Trump, the insulin case has no judges at the moment.

When the commission agreed to move forward with the complaint in September, both Republicans, Melissa Holyoak and Andrew Ferguson, recused themselves from the case, because of work they both did at state-level enforcers on PBMs. (Quite good work, to be clear.) The other three who voted on the complaint, then, were the then-chair Lina Khan, and Democrats Rebecca Kelly Slaughter and Alvaro Bedoya.

Khan stepped down in January, and her replacement, Republican Mark Meador, has not yet been confirmed to his commissioner spot. Then on Tuesday, Donald Trump tried to fire the other two Democrats, Slaughter and Bedoya, claiming that he has the unitary power as the head of the executive branch to fire commissioners at independent agencies.

*snip*