Court shopping
The mega merger of Kroger and Albertsons is poised to do more than change the signs and prices at your supermarket. As the grocery giants fight with attorneys general in several states, a pivotal showdown with the Federal Trade Commission in Ohio could wind up expanding Kroger’s brand and hobbling the administrative state all at the same time.
Kroger and Albertsons's $24.6 billion plan to join forces is a relatively simple one. The grocery chains are eyeing big-box stores, such as Walmart, Target, and Costco, edging in on the supermarket business as a threat to their viability. If they want to stay in business and provide customers with affordable food and ingredients, they need to combine to survive.
Skeptics at the FTC, which doesn’t view big-box retailers as working in the same space as grocery stores, say the deal is anticompetitive. If the most dominant grocery chains were allowed to merge, there would be less incentive for them to keep prices down as their primary competitors turn into sister stores overnight.
But playing out beneath the surface-level question of whether the companies can merge is a battle over who should be allowed to determine that question and what venue should host the arguments.
In the second part of our Supermarket Sweep Up series, Supreme Court Reporter Kaelan Deese has provided a guide for the second-level battle that is likely to have longer-lasting effects on the country than anything your local grocer expected.
“Kroger contends that the merger should be adjudicated in federal court, rather than handled by in-house Administrative Law Judges (ALJs), which often are criticized for favoring the legal positions of the agency,” Kaelan explained this morning.
“If the grocery store chain's argument sounds familiar, it is because the Supreme Court recently ruled on a similar matter against the Securities and Exchange Commission earlier this year in the case known as SEC v. Jarkesy , which held that the Seventh Amendment entitles a defendant in a securities fraud case to a jury trial, effectively curbing the SEC's ability to force disputes before in-agency judges.”
At the heart of Kroger’s complaint against the FTC is the problem of the in-house administrative law judges not being subject to removal by the president. If the FTC, or another agency, wants to put its thumb on the scale of a specific policy, in theory, all it has to do is force the question in front of its own judges. If those judges can’t be recalled by the public or removed by the president, the agency can act as judge and jury.
This practice isn’t without backers. Labor union leaders are supportive of the FTC’s aims in the Kroger merger, arguing that workers’ wages will be negatively affected if the deal is allowed.
How, precisely, the deal is going to shake out isn’t clear. However, with so many legal irons in the fire, Kroger appears to have set itself up for success, Kaelan wrote.
“In some ways, Kroger's lawsuit against the FTC acts as a failsafe to protect its merger plans in the event that the merger ultimately is struck down by the agency,” he wrote.
“In other words, if the grocery chain does not get its way, then the chain's constitutional challenge in Ohio federal court serves as a backup that could take a legal sledgehammer to the regulatory power house,” he added.
Click here to read more about the thorny questions the mega merger could answer.
What’s old is new again
Tying Vice President Kamala Harris to President Joe Biden and his agenda was always going to be the key to success for former President Donald Trump .
Unfortunately for him, Harris recognized her weakness running as a continuation of an unpopular president. Biden fell behind Trump in polling far enough that trying to sell voters on more of the same looked like a dead end.
Harris is walking a fine line trying to separate herself from the administration she is still a part of, and at least appearing to jettison her policy plans she held the last time she was setting the agenda rather than signing on to it, to pitch herself as the “change” candidate in the 2024 presidential race.
Though she continues to praise her boss, Harris made it clear on Tuesday night during her winning debate performance with Trump that “clearly, I am not Joe Biden, and I am certainly not Donald Trump.”
White House Reporter Naomi Lim is up this morning with a look at Harris’s scramble to make sure she isn’t seen as the incumbent in the race. Where President Barack Obama brought “hope” to Democrats in 2008, Harris is trying to recapture his magic and bring “change.”
“For most of the 2024 cycle, concerns over mental acuity were squarely focused on Biden, culminating in a June debate at which he struggled to complete his thoughts,” Naomi wrote. “But with Harris now at the top of the ticket, she is attempting to shake the idea that she is the incumbent in the race by making Trump's own age a liability.”
“Harris framing herself as a change candidate is a perceived advantage during an election cycle in which voters repeatedly told pollsters they did not want a rematch between Trump and Biden before the president suspended his campaign in July.”
Trump had an opportunity to put a damper on Harris’s plans on Tuesday night. In the first meeting between the two, in any capacity, the former president struggled to set the terms of the debate. Harris established herself as the dominant party immediately, starting the night by walking up to Trump’s podium to shake his hand after he veered there rather than meet her at the center of the stage.
For the rest of the evening, Harris inserted herself under Trump’s skin, forcing him to come off as angry and irritable rather than the disciplined debater he was during Biden’s June 27 meltdown.
Harris did little to define herself as different from Biden, often side-stepping specific policy proposals in favor of generalizations about her plans and turning the knife on Trump. But he wasn’t successful in forcing her to answer for her policy flip-flops or defense of Biden’s unpopular policies, something that disappointed GOP senators .
Click here to read more about Harris’s plan to paint herself as something new.
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For your radar
Biden will deliver remarks ahead of the 30th anniversary of the Violence Against Women Act at 5:45 p.m.
Harris will deliver remarks at two campaign events in North Carolina this afternoon. She will speak in Charlotte at 3:40 p.m. and then in Greensboro at 6:50 p.m. before returning to Washington, D.C.
White House press secretary Karine Jean-Pierre will brief reporters at 2:30 p.m.
Gov. Tim Walz (D-MN) campaigns in Grand Rapids, Michigan, at 7 p.m.
Trump will hold a campaign rally in Tucson, Arizona, at 4 p.m. Eastern.
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