President Joe Biden hands a pen to FTC chair Lina Khan as he signs an executive order on “promoting competition in the American economy” in the State Dining Room at the White House, July 9, 2021. (Evelyn Hockstein/Reuters) This executive order appears to have been drafted in a way that treats the independence of these agencies as something that is purely nominal.
President Biden’s sweeping executive order on competition is a strange beast. It lurches from lofty claims about encouraging competition to niggling complaints about undisclosed airline checked-bag fees. The order has the force of law but also tries to direct agencies that are supposedly independent of presidential control. Most important, it’s a further step toward presidential usurpation of legislative and judicial power.
Yes, technically everything in the order is already authorized in one way or another by current law. However, the president is also constrained on how he directs officials by “rules about rules” such as the Administrative Procedure Act (APA.) The Trump administration, to its credit, tried to strengthen rules about rules by issuing what my colleague Wayne Crews calls “final rules on guidance,” or FROGs, that restricted the use of guidance documents to get around the APA. One of Biden’s early executive orders stomped on these FROGs to make it easier for his officials to issue de facto rules without notice and comment, as required by the APA. The president is prejudging the results of the rulemaking process. That may be the least of the problems with this order.
Indeed, in the case of many actions demanded by President Biden in this order, the rules proposed have already been through a process of notice and comment in either or both the Obama and Trump administrations but were not finalized because objections raised by affected parties were recognized as substantive enough to stop the rule from being issued. The president’s rule on airline-fee disclosures is a case in point. The Obama Department of Transportation admitted that the rule failed the all-important cost-benefit test, with costs outweighing benefits, but tried to claim that unquantifiable benefits such
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