After a delay caused by the shutdown of the federal government last fall, Asbury Automotive Group (“Asbury”), one of the largest automobile dealer groups in the country, has resumed its constitutional challenge to the authority of the Federal Trade Commission (FTC) to prosecute claims for violation of Section 5 of the FTC Act before an in-house administrative law judge. Meanwhile, with Asbury pressing motions before both the U.S. Court of Appeals for the Fifth Circuit and a Texas federal district court, the FTC has ordered the evidentiary hearing in the administrative action be delayed until August 2026.

Asbury’s Challenge to FTC Enforcement Action

In August 2024, the FTC commenced an administrative enforcement action against three Texas dealerships owned by Asbury for allegedly charging consumers for “add-on” items those consumers had not agreed to purchase or were told were required, and for allegedly discriminating against “Black and Latino consumers” by targeting them with “higher-priced add-ons.” Asbury responded with a lawsuit filed in federal court in Texas seeking a preliminary injunction blocking the administrative action, arguing, among other things, that the action violated Article II of the U.S. Constitution because FTC commissioners were not subject to removal by the President. In August 2025, the district court denied Asbury’s request for a preliminary injunction and dismissed the majority of its constitutional claims, leaving intact only Asbury’s claim that the FTC’s administrative proceeding violated Article III of the Constitution by adjudicating private rights in a non-Article III tribunal.

Asbury Simultaneously Appeals and Moves for Reconsideration

Asbury appealed the district court’s order denying its motion for preliminary injunction to the Fifth Circuit in September 2025, and on the same day also filed a motion with the district court seeking reconsideration of the same order. Asbury’s reconsideration motion hinges primarily on the Fifth Circuit’s decision in Space Exploration Technologies Corp. v. NLRB, entered just a week after the district court entered its order denying Asbury’s preliminary injunction motion and granting much of the FTC’s motion to dismiss. In SpaceX, the Fifth Circuit held that plaintiffs did not need to demonstrate “compensable harm” to obtain a preliminary injunction against an ongoing National Labor Relations Board proceeding on the grounds that the removal protections for NLRB members and ALJs violated Article II.

In December 2025, Asbury filed a motion with the Fifth Circuit seeking to dismiss its appeal “without prejudice” until the district court ruled on Asbury’s motion for reconsideration.  The FTC opposed that motion, arguing that Asbury “can choose to continue with this appeal or dismiss it with prejudice so that the district court can decide the reconsideration motion,” but that Asbury’s chosen course was “procedurally inappropriate.” Meanwhile, in the district court, the FTC opposed Asbury’s reconsideration motion, arguing that the Fifth Circuit could decide whether and how the logic of the SpaceX decision should apply to the district court’s decision denying Asbury’s preliminary injunction motion, and further noting that President Trump had actually removed two FTC commissioners since taking office in January 2025.

Further Delay of Administrative Action

Shortly before the district court denied Asbury’s preliminary injunction motion in August 2025, the FTC entered an order delaying the evidentiary hearing in the FTC administrative action until March 2026.  With Asbury’s appeal pending in the Fifth Circuit and motion for reconsideration pending in the district court, the FTC entered another order in late November 2025 directing that the evidentiary hearing in the administrative action be continued until August 6, 2026.

The ultimate resolution of Asbury’s challenge could have a dramatic impact on how the FTC pursues enforcement actions against car dealers imposing unwanted “add-ons” or engaging in other deceptive acts and practices, but it is unlikely to end the FTC’s enforcement efforts.  In a September 2025 speech before the National Automobile Dealers Association, FTC chair and commissioner Andrew Ferguson warned that “[c]omplaints related to automobile transactions consistently rank among the top ten consumer complaints that the FTC receives every year.” Commissioner Ferguson noted that it was these complaints that motivated the FTC to promulgate the Combating Auto Retail Scams (CARS) Rule during the Biden Administration, and although the Fifth Circuit had vacated that rule “on narrow procedural grounds,” he warned “the FTC will not hesitate to step in to protect consumers from dishonest and unfair treatment in the auto industry, or in any other industry.”