Microsoft, Activision Back Off Aggressive Claim in FTC Case (axios.com) 37
Microsoft says it made a mistake last month when it claimed that the very structure of Federal Trade Commission, the agency trying to block its bid for Activision Blizzard, violates the United States Constitution. From a report: Microsoft removed that argument Thursday as it filed a revised -- and less incendiary -- response to the FTC's lawsuit to stop the tech giant's $69 billion gaming acquisition. Microsoft's new filing still argues that its purchase of the creator of Call of Duty, World of Warcraft and Candy Crush would not unfairly stifle competition with other game makers. But it no longer includes a five-bullet-point salvo claiming that the FTC's structure and in-house administrative court, where the Activision case is being heard, run afoul of the Constitution, the separation of powers and the due process clause of the 5th Amendment.
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If you're going to say something so stupid, at least do it anonymously.
The "provision" you claim doesn't exist comes from the Legislative branch, Article 1, section 8. To wit:
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
In other words, the authrity of the FTC flows directly from the power of Congress. If you don't believe that, go back and read what the originalists (the Founding Fathers) had to say on the matter. You might learn something.
Re:Of course... (Score:4, Insightful)
The constitution is not all encompassing. It is a skeleton that gets filled in with legislation. I know there's a school of thought that if it's not in the constitution then it's not allowed (except by states, especially if they're historically anti-federalist). The FTC was created with an act of congress, and run by the executive, and with the oversight of the courts, therefore it does not violate any separation of powers. Times have moved on from 1790, we're no long giving deference to slave states in order to keep the union from disassembling, and having moved on the idea that local states should control all business regulations is archaic in an age where we can deliver a signed document from the east to the west coast in a single day and transmit trading data in less than a second on the way back.
Almost everything the FTC and FDA does goes across state lines also. Many of the same people insisting on old fashioned states rights (primarily the right of those legislatures to remove the rights of their residents) are also the same people who insist the interstate commerce clause is broken despite it being in the constitution. In this sense, the constitution is a lot like religious scriptures: it can be used as the utter proof to argue on both sides of the same issue.
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I think that's a bit of a stretch. Saying that because a draft opinion contained an old quote therefore the final decision is based solely off of that quote? A little much self-serving and dishonest. It is one risk of getting your opinions out of your daily paper, or your favourite "journalist"^Wactivist blog. You do need to (learn to) maintain a honest outlook even if you don't agree with the other guy.
I won't mind seeing TLAgencies fall over because "unconstitutional", because a number of them have becom
Given the size of this merger (Score:3)
Re:Given the size of this merger (Score:4, Interesting)
What we have here is an attempt further a doctrine, named in that article, that seems to be made up from whole cloth by the SCOTUS not too long ago. It was seeded in the idea that Congress must make explicit rules by way of law, and not made by agencies created by congress to make rules. This was forged as this new doctrine to be used in stripping agencies of their rule making power. The SCOTUS has started by making it only in "extreme" circumstances. Of course, "extreme" is squishy and also a moving target, and that's the point.
Re:It's amazing what they're trying to get away wi (Score:4, Insightful)
There's a school of thought that the confederates actually won the civil war. They lost the right to slavery but in the long run they managed to delay actually giving rights to their residents for over a century. Along with that idea, there seems to always have been an undercurrent hidden with a long patience waiting for the day when they can roll back some reconstruction era federalism.
not in the Constitution? (Score:3)
It's not like there is a clause that grants Congress the power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes"
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Abe Lincoln wrote it in 1776.
John Ashcroft wrote it during the Bush administration
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As you pointed it says clearly "Congress".
The FTC and most 3-letter agencies are a part of the Executive Branch (part of why a President has so much power) and thus not under the power of "Congress".
Re:not in the Constitution? (Score:4, Informative)
And created in 1914 by an Act of Congress. Ooopsie
Would it surprise you that the Legislative branch doesn't manage the day to day operations of government. It's almost like there is another branch that oversees that.
Hmmm.. I feel like 10th grade civics/social studies class rushing back to me.
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Indeed. Power of legislative is in crafting legislation that is executed by the executive branch. I.e. "power vested in legislative" means that legislative can legislate both the rules on the subject and organisations to enact those laws.
Microsoft's argument is utterly insane.
Re: not in the Constitution? (Score:3)
As much as I would like to agree with you on the "Their argument is insane" sentiment (and I DO think you are correct.) it's getting impossible to tell where the mega corporations end and the "government" begins, and has been for many decades now. Worse since "speech" was essentially equated with money.
Government and big business employ the same people more often than not, many times literally writing the proposals that "Congress" then rubber stamps into law. Add to that the rise of propaganda-as-news becau
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The problem is that the FTC has granted itself powers, including its own internal judiciary branch that were not and could not be delegated by either the executive or legislative branch. If the FTC rules aren't being followed, they should sue in court. Just because congress delegates some of its own powers does not mean that the agency therefore is above the law.
There is another pending case (Axon vs FTC) that creates the same challenge as Microsoft did.
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The Supreme Court has time and time again recognized Article I (legislative) judges. Where contention currently lies is in how they are selected and appointed. Not in that they are allowed to exist at all.
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Those agencies were created by congress though. Congress does not micromanage commerce. Some may argue that the original form of the constitution left that micromanagement to the states, but that is archaic and long outdated after many amendments and a civil war. And yet I see quite a lot of prominent people espousing such ideas and praising originalism.
I suspect that having Microsoft laywers pull some of these arguments out of a dusty bin surprised some higher ups in that company who quickly called the
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SCOTUS ruled last year that administrative courts are Unconstitutional.
FTC may make a referral to the DoJ for prosecution under the auspices of the Judicial Branch if it wants to have a trial.
Executive Branch courts are now deemed illegal.
Most likely Microsoft thinks it can win without going to SCOTUS to have them slap down FTC so they withdrew the claim for expediency. But they're not wrong.
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ALJ [wikipedia.org] are still legally recognized in the US. You may appeal a decision of an Administrative Law court to a higher court, but otherwise the results of an administrative law court or tribunal are binding. All this is also in the Constitution. [congress.gov] (last part of the first sentence)
Have a nice day!
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i for one, wonder how the executive should exercise the powers given by the sherman act...
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SCOTUS ruled last year that administrative courts are Unconstitutional.
If by "SCOTUS" you mean "Fifth Circuit Court of Appeals", and by "administrative courts" you mean "the particular manner in which the SEC operates its administrative court", then you are absolutely right. Otherwise, that is hilariously incorrect and stupid.
Executive Branch courts are now deemed illegal.
Well, looks like my second theory was the correct one.
Monopolies are a problem (Score:2)
That is exactly why this acquisition and all others really need to be stopped.
Microsoft Should Have Been Broken Up by FTC (Score:2)
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Some judge in Minnesota quietly folded on it at the last second. I assume there was both threats and bribery involved.
Angry Children (Score:2)
No Good-Faith Argument tp Change Existing Law (Score:2)
I just read the original filing, and the constitutional objections to the FTC could be applied to virtually any administrative agency that has significant judicial-style power without a normal judge being involved, any agency that has an enforcement mission instead of just waiting for claims as a neutral arbiter, and any agency with powers that encompass the powers of all three branches of government instead of having those powers separated. If these arguments were new, we might have some real issues here,
Sweet yesus... (Score:2)
Why is it a huge deal to say "they're trying to hide proceedings, or change the rules...and we want regular court". Instead you take the argument to move venues...and make it into an argument against the FTC itself?
Please put AI here (news). And let it hear me when I say I don't want click bait and hyperbole. Just tell me like it is. And a negative incentive to not waste my time.