Fireworks came a bit early this year. Between the Supreme Court’s end-of-term decisions and this week’s January 6th Committee hearings, it wasn’t a week with much antitrust news coming out of either the FTC or Congress. But the Supreme Court’s made sure to keep things exciting: the opinion in West Virginia v. EPA case will reshape the regulatory landscape for years to come, including the world of antitrust.
This week’s headline is the WV v. EPA opinion. Nominally about the EPA’s efforts to regulate coal power plants, the opinion is really about the so-called major questions doctrine (MQD). Summarizing in a sentence a case that will be the subject of hundreds of law review articles and years of clarifying litigation, the MQD says that agencies can’t enact regulations of vast political or economic significance unless Congress clearly delegates them the authority and tools to do so.
This outcome isn’t surprising – but it is nonetheless a big deal. For some general discussion, you could do worse than listening to Corbin Barthold and Berin Szóka dissecting the opinion in real-time. Focusing specifically on the FTC, commentators anticipating the ruling have argued that the MQD could substantially curtail the FTC’s UMC authority. Now that we have the opinion, that outcome seems likely confirmed.
The contours of the major questions doctrine are unclear. That is one of the most trenchant criticisms of the doctrine. But the Court’s opinion points to several factors beyond merely relating to a rule of “vast political or economic significance” (which remains the defining characteristic). Claiming new, or only rarely used, regulatory authority suggests a major question, especially if that authority would mark a “transformative expansion” in the agency’s authority. If the power is based in vague language or “ancillary provisions” of a statute suggests a major question. Or Congress having “conspicuously and repeatedly declined” to regulate the issue through legislation suggests a major question. All of these factors apply in the context of the FTC using its UMC authority, based the ancillary rulemaking authority of Section 6(g), to transformatively expand its authority to address any number of issues that are believed to be subject to FTC interest.
At the same time, those concerned about expansive UMC authority should not be too quick to think the UMC rulemaking project dead. The EPA and many other agencies to which the MQD is likely to apply, such as the FCC, have narrower scope than the FTC. While broad, the EPA’s authority is tailored to specific environmental issues; the FCC’s authority is tailored to specific communications technologies. Arguably, the FTC’s authority is more general than other agencies to which the MQD will clearly apply – unfair methods of competition can occur in any aspect of the economy.
Realistically, however, the prospects of the FTC surviving a MQD challenge if it pushes aggressive use of its UMC authority are slim. The bareness of the Section 6(g) rulemaking authority is challenge enough. But perhaps even more important is the theory underlying WV v. EPA and the MQD. Justice Roberts’s majority opinion invokes both separation of powers and legislative intent concerns. The MQD is about both whether Congress meant to, and whether it was appropriate for it to, delegate broad authority to an agency. It seems clear that if Congress wants to delegate substantial power to an agency that the Court expects Congress to be very clear about what that power is and how it is to be used. It is not enough to say “EPA, you regulate environmental stuff; FTC you regulate competition stuff.”
Turning now to other news. Can we call AICOA dead yet? Probably not, but time for Sen. Amy Klobuchar (D-MN) to save her American Innovation and Choice Online Act runs low. In addition to the academics, advocates, and Democratic senators (see last week’s Roundup for those details), social justice groups have joined the chorus expressing concerns about how AICOA might limit platforms’ ability to engage in content moderation. Alden Abbott has also brought focus to largely overlooked rule of law concerns raised by AICOA.
Speaking of other dead things, ADPPA seems to be spinning in its own grave. Late last week Sen. Maria Cantwell (D-WA), chair of the committee the bill would need to go through, said she has no plans to consider the bill in committee – and that Sen. Chuck Schumer (D-NY) has no interest in bringing it to the Senate floor. That sounds pretty dead. But the Court’s Dobbs opinion has made it deader. Over the weekend, a spokesperson for Cantwell “does not adequately protect against the privacy threats posed by a post-Roe world.”
So, it seems likely the FTC remains the only potential privacy bulwark to which privacy advocates can turn. President Biden is already asking them to address Dobbs-related privacy issues. But query: would an FTC effort to develop rules to address privacy concerns present a major question – these are issues of longstanding Congressional debate and substantial economic and political importance? (I expect not; but I expect the issue could get into court.)
Some quick hits, literally. Today one forgets about the CFPB or its director, Rohit Chopra, at their peril. The Chamber of Commerce is trying to change this. ITIF’s Julie Carlson talks about the meteoric rise and fall of Lina Khan. The fall seems premature, but the WV v. EPA has certainly brought the ground closer. It may be a less literal hit, perhaps, but MLB’s antitrust exemption may be in its last innings. And where’s the beef? Price stabilization legislation is moving through the Senate Ag Committee.
Some parting thoughts? If you insist. Last week we mentioned this week’s Concurrences conference on the Rulemaking Authority of the FTC. It was a great event! Among other things, it introduced Dan Crane’s new, must-read, book on the topic, featuring chapters by a who’s-who of writers in the field. Several authors have previously contributed to the Truth on the Market symposium on the topic (hey, this post is part of that, too!) – and in the coming week we will have some more contributions from those authors.
Finally, a Friday afternoon read: Last week was Microsoft Internet Explorer’s last as a going concern. What can those concerned about big tech learn from the browser wars? Find out here.
The FTC UMC Roundup, part of the Truth on the Market FTC UMC Symposium, is a weekly roundup of news relating to the Federal Trade Commission’s antitrust and Unfair Methods of Competition authority. If you would like to receive this and other posts relating to these topics, subscribe to the RSS feed here. If you have news items you would like to suggest for inclusion, please mail them to us at ghurwitz@laweconcenter.org and/or kfierro@laweconcenter.org.