Biden’s Executive Order on Promoting Competition in the American Economy

President Biden signed his Executive Order on Promoting Competition in the American Economy on July 9, 2021. His goal: to promote a fair, open, and competitive marketplace to give entrepreneurs, consumers, and workers more economic power.

The president backed up his intent to return to the antitrust traditions of Presidents Franklin and Teddy Roosevelt in a tweet following the signing ceremony:

Let me be clear: capitalism without competition isn’t capitalism. It’s exploitation.

— President Biden (@POTUS) July 9, 2021

The order addresses what Biden sees as anticompetitive problem areas in a variety of American industries due to consolidation. This, along with government inaction, has resulted in “widening racial, income, and wealth inequality,” according to the president.

What’s Mandatory and What’s Not

The designation “Executive Order” suggests a presidential directive that must be followed. In fact, executive orders are not defined by the U.S. Constitution. This has led to confusion about how they can be used and to which parts of government they apply.

According to the Federal Register, “The President of the United States manages the operations of the Executive branch of Government through Executive orders.” Important caveats apply. Executive orders have the effect of law provided that they are “based on powers granted to the President in the Constitution and...consistent with those authorities.”

Historical disagreements about the legality of certain executive orders abound. Typically, the disagreements revolve around charges of “presidential overreach” or “legislation by fiat.” This has led to the practice of judicial review of executive orders. If the court determines that the president lacked authority or that the order is unconstitutional, then the order is struck down.

The Cabinet-level agencies in the executive branch of government subject to executive orders are: the departments of Agriculture (USDA), Commerce, Defense, Education, Energy, Health and Human Services (HHS), Homeland Security, Housing and Urban Development (HUD), Interior, Justice (DOJ), Labor, State, Transportation (DOT), Treasury, and Veterans Affairs (VA).

Biden’s wide-ranging executive order on competition in the marketplace uses a combination of mandatory (directs) and softer (encourages) language to prod federal agencies to adopt policies designed to push back against corporate consolidation (mergers) and practices that the White House sees as anticompetitive.

Promoting Competition in the American Economy

Officially known as Executive Order (EO) 14036, the 13-page document contains 72 initiatives directed at more than a dozen federal agencies. What follows is a summary of the key parts of the order.

Section 1. Policy

Section 1 lays out and expands on the Biden administration’s stated policy to enforce antitrust laws to address the impacts of what it sees as an excessive concentration and abuse of power related to labor markets, agricultural markets, Internet platform industries, healthcare markets, repair markets, and other U.S. markets directly affected by foreign cartels.

Section 2. The Statutory Basis of a Whole-of-Government Competition Policy

This section lays out the rationale for what the administration sees as the need for a whole-of-government approach to driving down prices for consumers, increasing wages for workers, and facilitating innovation in the marketplace. Further, according to Biden, “Such an approach is supported by existing statutory mandates. Agencies can and should further the policies set forth in...this order.”

Section 3. Agency Cooperation in Oversight, Investigation, and Remedies

In Section 3 of the EO, the administration encourages federal agencies to coordinate enforcement efforts when it comes to antitrust laws and specifically calls on the DOJ and the Federal Trade Commission (FTC) to enforce existing laws within their jurisdiction as “vigorously” as possible. The EO further stipulates that agencies should concentrate on labor markets, agricultural markets, healthcare markets, and the tech sector.

Section 4. The White House Competition Council

In this section, EO 14036 establishes a White House Competition Council to coordinate the White House response to anticompetitive behavior. It also sets response deadlines for various agencies’ members. Members of the White House Competition Council include:

• Secretary of the Treasury
• Secretary of Defense
• Attorney General
• Secretary of Agriculture
• Secretary of Commerce
• Secretary of Labor
• Secretary of Health and Human Services
• Secretary of Transportation
• The administrator of the Office of Information and Regulatory Affairs
• Heads of other agencies when invited to participate

Section 5. Further Agency Responsibilities

The EO further directs all named agencies to consider using their authority to promote policies laid out in Section 1 of the order. Key EO 14036 initiatives by sector are outlined below.

Agriculture

• Recommends that the U.S. Department of Agriculture (USDA) issue rules under the Packers and Stockyards Act to allow farmers to more easily bring claims regarding bad practices.
• Calls on the USDA to issue a plan to increase opportunities for farmers to access markets within 180 days and to issue a report on the effect of retail concentration on competition in the food industries within 300 days.
• Directs the USDA to ensure that the intellectual property system encourages innovation and avoids reducing competition in seed and other input markets.
• Calls on the FTC to restrict manufacturers from limiting an individual’s ability to use independent repair shops or repair their own equipment.
• Calls on the FTC and the DOJ to evaluate mergers in agriculture markets.
• Urges the USDA to consider stricter rules for when meat can use “Product of USA” labels.

Banking and Finance

• Calls on the Consumer Financial Protection Bureau (CFPB) to develop rules allowing customers to port their banking data.
• Directs the Attorney General, within 180 days, to review current practices and adopt a plan for the revitalization of merger oversight under the Bank Merger Act and the Bank Holding Company Act of 1956.
• Urges the DOJ and other agencies to update guidelines on banking mergers.

Big Tech

• Outlines a policy of greater scrutiny of mergers, especially by dominant Internet platforms.
• Encourages the FTC to issue rules on surveillance and accumulation of data, rules prohibiting unfair methods of competition on Internet marketplaces, and anticompetitive limits on utilizing independent repair shops.
• Directs the Treasury to, within 270 days, submit a report examining the impact of competition by large tech firms and other nonbank companies on consumer finance markets.
• Urges the FTC to create rules “barring unfair methods of competition” harmful to smaller businesses.
• Encourages the FTC to curb cellphone manufacturers’ restrictions against repairs by independent shops.

Healthcare

• Calls on HHS to issue a plan within 45 days to combat high prescription drug prices.
• Calls for HHS, within 120 days, to consider rules to allow hearing aids to be sold over the counter.
• Directs the Food and Drug Administration (FDA) to help expedite imports of prescription drugs from Canada.
• Encourages the DOJ and the FTC to revise guidelines for hospital mergers.
• To continue to promote generic drug and biosimilar competition through a number of actions, including actions with the FTC.
• Calls on HHS to support existing hospital price transparency rules and to continue implementing legislation to address surprise billing.

Internet

• Calls on the Federal Communications Commission (FCC) to halt the ability of Internet service providers (ISPs) to negotiate with landlords to limit tenants’ choices.
• Urges the FCC to require providers to report prices and subscription rates to the FCC and to restrict “excessive” early termination fees.
• Encourages the FCC to restore Obama-era Net Neutrality rules.
• Pledges greater scrutiny of mergers by dominant Internet platforms and the acquisition of smaller competitors.
• Urges the FTC to establish rules on large platforms’ use of surveillance and gathering of user data.
• Encourages the FTC to curb cellphone manufacturers’ restrictions against repairs by independent shops.

Labor

• Encourages the FTC to ban or limit the use of noncompete clauses and occupational licensing restrictions to limit workers’ mobility.
• Encourages the FTC and the DOJ to limit employers’ ability to share wage and benefits data with other employers to suppress outlays to employees.
• Notes that certain occupational licensing requirements restrict competition, and asks the FTC to ban “unnecessary” occupational licensing restrictions that restrict worker mobility.
• Specifically calls out “labor markets“ as markets that the FTC and the DOJ should consider in evaluating proposed mergers.
• Directs the Treasury to, within 180 days, submit a report on the impact of the current lack of competition on labor markets.

National Defense

• Recommends that the Department of Defense (DoD) submit a report assessing the state of competition within the defense industrial base.
• Encourages the DoD to develop a plan to avoid contract terms that limit the ability of the DoD to repair its own equipment.

Transportation

• Encourages the DOT to consider rules and enforcement actions to enhance consumer access to flight information, including by new or lesser-known airlines.
• Urges the DOT to consider rules to ensure that advertising, marketing, pricing, and charging of ancillary fees do not constitute unfair or deceptive practices or unfair methods of competition.
• Directs the DOT to report to the White House Competition Council regarding progress with airlines providing refunds for flights canceled because of the COVID-19 pandemic.
• Urges publication of a proposed rule requiring airlines to refund baggage fees when a passenger’s luggage is substantially delayed and when other ancillary fees are charged and the service is not provided.
• Encourages the DOT to ensure that it facilitates innovation and competition in new aviation technologies (including unmanned aircraft systems).
• Directs the chair of the Surface Transportation Board (STB) to take certain steps aimed at addressing industry consolidation and shipping prices.
• Urges the DOT to consider undertaking rulemaking to address other issues regarding competitive access, including bottleneck rates, interchange commitments, or other matters.
• Encourages the DOT to ensure that freight railroads are giving passenger rail access without unwarranted delays or interruptions consistent with existing federal law.
• Directs the chair of the Federal Maritime Commission (FMC) to work with the other FMC commissioners to take certain actions to address high shipping costs resulting from various factors, including the consolidation of the global container shipping industry.

Section 6. General Provisions

The closing general provisions state that the order is subject to the law and availability of appropriations. Independent agencies not otherwise subject to the order are encouraged to comply. Finally, the order is not intended to create any benefit at odds with U.S. law.