The AHA today urged the U.S. Supreme Court to reverse a 9th Circuit decision that impliedly stripped federal district courts of jurisdiction over constitutional challenges to the Federal Trade Commission’s structure, procedures and existence.

“When a hospital is targeted by the FTC, the process that results is costly, protracted, and stacked against the hospital—regardless of the merits of its position. … The chilling effects of unlawful enforcement actions permit the FTC to win even by losing, which is not how the rule of law is supposed to work. Having been subjected to this one-sided process time and again, hospitals too often conclude that it is best to simply fold, even when the enforcement action is unconstitutional, the merger would be procompetitive, or the community would receive better care at a lower cost.  After all, hospitals know that when it comes to FTC enforcement actions, the house always wins,” AHA said in a friend-of-the-court brief filed in Axon Enterprise Inc. v. FTC et al.

“This unhappy state of affairs is all the more frustrating because it is due entirely to an uncodified, non-public, black-box clearance process through which hospitals are subject to the FTC’s protracted and often unfair proceedings, while health insurance companies are subject to enforcement by the Justice Department,” AHA’s brief continued.

“If the Ninth Circuit’s decision is allowed to stand, that chilling effect will only worsen.”

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