Evan Vucci/AP Photo
President Biden hands out a pen after signing an executive order aimed at promoting competition in the economy, in the State Dining Room of the White House, July 9, 2021.
On Friday, President Biden announced a comprehensive executive order that may amount to the single most consequential day of his young presidency. In one omnibus statement, Biden called on the Justice Department, the Federal Communications Commission (FCC), the Federal Trade Commission (FTC), and other agencies to implement 72 specific provisions meant to encourage competition, raise wages, and weaken the force of monopolies in the American economy.
A number of those provisions mark substantial developments, and would be individually notable on their own. Biden’s recommendation on right to repair is a potential game changer for farmers, who are beholden to equipment manufacturers like John Deere and Caterpillar that functionally forbid them from repairing their own tractors, as well as for gamers seeking to modify their consumer electronics. The recommendation to drastically curtail the use of noncompete clauses, which were once used for corporate executives but now hamstring some 60 million American workers in low-wage sectors like janitorial services, represents a major transformation for the labor market as well. And the recommendation of reinstatement of the exceedingly popular net neutrality, vanquished by the Trump administration, is perhaps the biggest headline-grabber of them all. All of that, plus recommendations on patent law, surveillance, and occupational licensing are in Biden’s executive order, and more. And the overall thrust of the order, determined to protect workers, consumers, and entrepreneurs from the hazards of consolidated corporate interests, signals a dramatic change from the last 40 years of policy in Washington.
Pay close attention to the language, though. As is often the nature of executive orders, Biden has recommended that various agencies—the FTC, the FCC, the DOJ—carry out these programs; the agencies themselves, which are helmed by both willing Democrats and obstructionist Republicans, have to do the carrying out. And as it stands currently, few of them are in a position to enact Biden’s orders, because Biden himself hasn’t staffed those agencies with his own personnel.
Biden’s push for increased scrutiny of tech monopolies (including consideration of even unwinding past mergers), and his call for patent policy reform to avoid an “anticompetitive extension of market power beyond the scope of granted patents,” is currently handicapped by the fact that he still hasn’t nominated an assistant attorney general to head up the Antitrust Division. Early in the administration, there was some jockeying over the position, with the party’s left flank pushing for Jonathan Kanter, a plaintiff’s lawyer who assisted in the cases against Facebook and Google, while Attorney General Merrick Garland wanted Facebook lawyer Susan Davies, as the Prospect reported. Davies withdrew, and anyone-but-Kanter forces migrated to onetime Joe Lieberman ally Jonathan Sallet. Biden quelled that tug-of-war by simply not appointing anyone to the position, which remains vacant (though rumor has it that might not be the case for long).
The current acting chief of the Antitrust Division, Richard Powers, has stated a commitment to review merger policy, and established a task force to implement the order’s provisions. But only a permanent leader will have the authority to make this kind of a shift. It would be absurd for Biden to direct his Justice Department to crack down on corporate concentration and then install an antitrust head who’s comfortable with letting companies grow bigger. Still, without the staff in place to carry out Biden’s order, it will remain unactionable.
It’s a similar story at the Federal Communications Commission, which remains in a deadlock, with two Democrats and two Republicans on the commission, and a fifth seat still vacant. In one of the last moves of the lame-duck period in December 2020, the Republican-controlled Senate approved Republican appointee Nathan Simington, a “wholly unqualified” candidate according to Sen. Richard Blumenthal (D-CT), with the express goal of creating a 2-2 tie-up. Without that fifth member on the commission tilting in favor of a Democratic majority, the FCC is not going to be advancing any of Biden’s recommendations on net neutrality either. Until another member is put up, the Trump-era standard will remain in place.
The Federal Trade Commission, meanwhile, currently sports a 3-2 Democratic majority in its leadership, but that’s all but certain to change, perhaps imminently. Rohit Chopra, Biden’s nominee to head up the Consumer Financial Protection Bureau, currently sits on the FTC. He’s expected to be confirmed to run CFPB soon, perhaps as early as this July work period. That confirmation will be a triumph for the very priorities Biden staked out in his order—Chopra is a sharp and aggressive enforcer—but it will leave behind yet another 2-2 deadlock in its wake, with an equal number of less-than-willing Republicans and aligned Democrats on the FTC.
Avoiding congressional obstructionism can only be done with a fully staffed and functioning administration.
That means that Biden’s mandate to the FTC to require “greater scrutiny of mergers, especially by dominant internet platforms, with particular attention to the acquisition of nascent competitors, serial mergers, the accumulation of data, competition by ‘free’ products, and the effect on user privacy” will again be immovable, at least until Biden nominates a replacement for Chopra, which, again, he has not. Ditto the right-to-repair recommendation, which is an FTC-directed recommendation, the curtailing of noncompete clauses, and the push to enact more limitations on surveillance and data collection, another one of the 72 initiatives. The FTC was given a significant amount of control over implementing the order, and that will be impossible once Chopra leaves, absent Biden acting on a nominee to replace him.
So while Friday’s announcement represents some of the most ambitious agenda-setting that the administration has produced, and an embrace of executive authority that has been shied away from in recent months, it’s offset by Biden’s lethargy in staffing. Getting an administration staffed up by hiring hundreds of people in a matter of months and getting over a thousand confirmed by the Senate is a challenge, but it’s a challenge that every president confronts.
Avoiding congressional obstructionism can only be done with a fully staffed and functioning administration, a threshold that Biden has not yet met, and seemingly has turned his attention away from. Still, the president can’t wield the entirety of his executive authority without it. And even this cannot be blamed on the Senate, as all but one of Biden’s Cabinet appointments have gotten their approval, much faster even than Obama’s in 2009. There is no filibuster for executive branch appointments.
So if Biden wants to see his agenda put into action, he’s going to have to stop neglecting those vacancies. If he doesn’t, even his executive orders will get bogged down in the gridlock of bipartisanship, with a 50-50 Republican-Democrat split doing to his pro-competition ambitions what a 50-50 Senate has done to his plans on infrastructure, voting rights, and more. Right now, Biden does not have the people in place, and has no one to blame but himself.
