Hagerty, Bilirakis, Issa Work to Prevent Biden Administration Overreach

June 15, 2023

WASHINGTON—United States Senator Bill Hagerty (R-TN), along with Representatives Gus Bilirakis (R-FL-12) and Darrell Issa (R-CA-48), has filed an amicus brief, co-signed by 31 additional Members of Congress, in the U.S. Court of Appeals for the Fifth Circuit in the matter of Illumina, Inc. and Grail, Inc,. v. Federal Trade Commission (FTC), to push back against the latest example of the Biden Administration’s overreach at the Federal Trade Commission (FTC) under the tenure of embattled Chair Lina Khan by urging the court to stop the FTC’s blockade of the Illumina/Grail transaction designed to spur development of a new, life-saving multi-cancer early detection test.

Chair Khan’s FTC has a lengthy track record of questionable governance practices, overregulation, and punitive actions that exceed, and are often inconsistent with, the agency’s statutory authority. However, this latest example of government overreach is particularly egregious. In its single-minded pursuit of unbridled, bureaucratic power to constrain businesses, the FTC is depriving Americans from enjoying widespread, affordable access to a breakthrough early cancer detection test. Grail was formerly a subsidiary of Illumina, and after Grail developed a breakthrough cancer detection blood test, it sought to be reacquired by its former parent company in order to commercialize production of the product and obtain full FDA approval to bring this new test to market. Both of these steps are necessary for the American public to gain the full benefit of this product—which is earlier cancer detection when it is more treatable. Despite the public interest in expediting availability of this product, the FTC sued Illumina in 2021 to stop the merger. 

In a first-of-its-kind ruling for an in-house court, an FTC administrative law judge ruled against the FTC last year and dismissed the FTC’s merger challenge in this case. However, the FTC appealed the decision to FTC leadership, who overruled the FTC ALJ and blocked the transaction. The case is now on appeal to the 5th Circuit.  

The lawmakers’ amicus brief requests that the Court find that the FTC has overreached with its order by exceeding the scope of its authority granted by Congress under the Clayton Act. The brief also contends that the FTC is violating the constitutional separation of powers under the Supreme Court’s major questions doctrine by attempting to regulate on a significant economic matter—a breakthrough effort to prevent a disease that afflicts millions of Americans each year—despite having not been given congressional authority to do so.

“By effectively blocking the emerging industry of early cancer detection testing, the FTC is not only violating our constitutional structure by exceeding the authority granted to it by Congress, but depriving Americans of this life-saving technology,” said Senator Hagerty. “I’m pleased to join Representatives Bilirakis and Issa in leading this effort to protect Congress’s constitutional authority and push back against the FTC’s regulatory overreach.”

“It is unconscionable that Biden bureaucrats are thwarting potentially life-saving access to cancer tests that could increase early disease detection,” said Representative Bilirakis. “In this latest case of Biden Administration overregulation, Chair Khan is expanding the scope and power of her agency in ways Congress never intended. Her relentless pursuit of an ideological and radical political agenda is having very real-life consequences for millions of American patients who could be benefitting from these tests and she must be stopped. My colleagues and I will continue to push back against this abuse of power and seek to rein in executive overreach.”

“Early detection. Accessible cures. Tolerable treatments. Historic savings to a government health system going bankrupt. This isn’t too good to be true,” said Representative Issa.  “It’s the stated goal of an American innovation that Lina Khan and the Biden administration can’t see past shutting down. Abusing the consumer protection power of the FTC to stop mergers by any means necessary is the textbook definition of regulatory abuse, and it needs to be stopped.”