President Biden’s sweeping order Friday seeking to spur competition and curb the power of big business highlights his willingness to use the presidential pen to rewrite economic policy, sidestepping a divided Congress unlikely to enact his most ambitious proposals.
In his first six months in office, Mr. Biden has been more aggressive than recent predecessors in turning to executive orders and actions as he seeks to overhaul Washington’s approach to everything from climate change to racial equity.
The Friday action was unusually broad, even by recent standards, in directing at one time more than a dozen agencies to explore 72 actions touching an array of issues, including expanding labor rights, lowering prescription drug prices, restricting airline fees, and giving bank customers more flexibility to change accounts.
The order is the culmination of a steady trend over the past two decades of presidents from both parties turning to executive authority as gridlock on Capitol Hill has blocked them from legislating core parts of their agenda.
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President Biden signed an executive order Friday that he says will promote competitive markets by limiting corporate concentration that hurts consumers, workers and small businesses. Photo: Evan Vucci/Associated Press The Wall Street Journal Interactive Edition
“We’ve seen during the last four presidencies, going back to the second Bush administration, an uptick in the number of executive orders, especially in the early parts of the administrations,” said Dan Bosch, director of regulatory policy for American Action Forum, a right-leaning Washington think tank. “It’s a recognition by presidents that they need to act on their own to get things moving in the direction they want.”
Democrats have made competition policy and antitrust enforcement a key part of their agenda, arguing that the federal government hasn’t done enough to preserve healthy, competitive markets. Republicans have agreed in some circumstances, particularly in the tech sector, but they say the Biden administration’s moves risk making the U.S. economy less productive. Democrats have narrow majorities in Congress, meaning most bills require the approval of Republicans to pass.
Mr. Biden’s directives won’t take effect right away because he is urging federal agencies to issue rules or make other policy changes, which can take months. If they are implemented, there are other limitations: executive orders can be overturned by future presidents and regulations can be unwound over time. Legislation enacted by Congress is much more difficult to undo.
“Executive orders can be initiated with the stroke of a pen, but they can also be overturned just as easily,” said Susan Dudley, a senior White House regulatory official during the George W. Bush administration.
That can add volatility to economic policy-making. “That makes it very difficult for businesses to plan, if agencies are just going to be reversing decisions every four or eight years,” said Mr. Bosch. “It’s not a steady course of policy.”
White House press secretary Jen Psaki said Friday she wouldn’t rule out the possibility of legislative discussions with Congress in the future, but she said Mr. Biden wanted to take action that would quickly have an impact.
Many of the policies ultimately implemented in response to the order will likely face legal challenges from affected businesses. Those cases will be heard in a court system that was filled over the past four years by the Trump administration with judges known for skepticism about aggressive regulatory action.
Among other things, the executive order directs the Federal Communications Commission to revive an Obama -era “net neutrality” rule stopping internet service providers from slowing down certain types of content or traffic. When industry sued to block that rule, Brett Kavanaugh, then a D.C. Circuit judge, wrote an opinion challenging the agency’s power to issue such regulations. He was in the minority on his court at the time, but was later put on the Supreme Court by then-President Donald Trump.
The order also asks the Federal Trade Commission to consider banning employers from requiring workers to sign noncompete clauses. The FTC has weighed that issue in the past, and some of its members have questioned whether the agency has the legal authority to do so.
Regulatory scholars said Mr. Biden’s order was unusual in directing agencies like the FTC and FCC, which are run by bipartisan panels, to take specific action.
“That could fundamentally transform those agencies, trying to align them with White House sweeping rule making,” said Adam J. White, a regulatory expert at George Mason University’s law school. “That’s going to attract a lot of attention politically and also in litigation. It will be interesting to see how that plays out.”
Mr. Biden and his aides have often compared the ambition of his economic program to the transformative agendas of Franklin D. Roosevelt’s 1930s New Deal and Lyndon B. Johnson’s 1960s Great Society. But those two presidents enjoyed big Democratic majorities in both houses of Congress willing to enact their proposals.
The president is seeking congressional approval for a multi-trillion-dollar economic agenda. While the infrastructure element of his proposal has bipartisan support, a second package focused on education, child care and climate change is unlikely to win GOP buy-in. Democrats are planning to move that legislation through Congress using a budgetary maneuver that allows the bill to proceed on a simple-majority vote, instead of the minimum 60 votes required to advance most measures.
President Barack Obama boasted of his “pen and phone” strategy to promulgate rules on his own when Congress blocked some of his major initiatives. Some of those, such as regulations aimed at curbing greenhouse gasses, were later stopped by courts. In the last year of his administration, Mr. Obama issued his own competition policy executive order similar to the one Mr. Biden signed Friday. Some of the rules that resulted from that directive were quashed shortly after Mr. Trump took office.
Mr. Biden signed 20 executive orders in his first three days in office and a total of 40 in his first 100 days—more than Presidents Trump, Obama and Bush.
Write to Andrew Restuccia at andrew.restuccia@wsj.com and Jacob M. Schlesinger at jacob.schlesinger@wsj.com
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