President Joseph R. 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
- President Biden’s July 9, 2021, Executive Order on Promoting Competition in the American Economy concentrates on promoting competitive markets through 72 initiatives directed at more than a dozen federal agencies.
- Areas covered include healthcare, internet services, big tech, labor, transportation & shipping, agriculture, and banking & finance.
- According to the White House, this order will, through a “whole-of-government” approach, drive down prices for consumers, increase wages for workers, and facilitate innovation.
- Critics worry about overreach on the part of government and consolidation of government power.
- The order contains both actionable directives and outreach to agencies that don’t fall directly under the president’s supervision.
The order addresses what Biden sees as anti-competitive 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.
Not everything in the President’s Executive Order on Promoting Competition in the American Economy is an “order.” Words such as “calls on” and “directs” indicate mandatory action is required. “Encourages” and “urges” suggest a softer push for action.
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 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 the president lacked authority or that the order is unconstitutional, it 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), Justice (DOJ), Labor, State, Interior, Treasury, Transportation, and Veterans Affairs (VA).
President 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 the White House sees as anti-competitive.
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.