Justice Gorsuch’s concurrence in Trump v. Slaughter, No. 25-332, calls the FTC’s power to define “unfair or deceptive” conduct under Section 5 “startling.” Chief Justice Roberts used the same word in the majority opinion. Neither line was necessary to the holding. But it’s the concurrence that should worry compliance counsel.
For decades, the yardstick has been the major questions doctrine: courts ask whether Congress clearly authorized a specific rule. Gorsuch’s opinion points somewhere else entirely, toward the nondelegation doctrine, the older and far more radical question of whether Congress can hand an agency this kind of open-ended lawmaking power at all. He’s made this argument before, in his Gundy v. United States dissent back in 2019. This time he’s writing from a case that just gutted a 90-year-old precedent, not a dissent nobody joined.
Congress did write a limiting clause into the statute, 15 U.S.C. § 45(n), capping unfairness findings at substantial, unavoidable consumer injury. That’s the old yardstick. Gorsuch’s concurrence suggests the statute itself, not just the FTC’s use of it, is the problem.
The CFPB’s UDAAP authority reads almost identically, and a Texas federal court already trimmed the Bureau’s reach once in the fight over its discrimination exam manual, a case still working through the Fifth Circuit. Worth reading Slaughter’s concurrence before you draft your next Section 5 comment letter.
Rebecca Lauren