The Antimonopoly Presidency

abstract. In the face of mounting corporate monopoly power, the Biden Administration is pursuing reforms that would shift decisions over the terms of economic coordination and competition closer to the ambit of presidential discretion. These proposals echo the unilateral authority over antimonopoly law that the National Industrial Recovery Act (NIRA), passed in 1933 and invalidated by the Supreme Court in 1935, granted to the President. This Note probes the NIRA’s implementation and aftermath to reveal how a revived antimonopoly presidency could rein in monopoly power without replicating the NIRA’s two key constitutional and democratic deficiencies: (1) unconstrained delegation of policymaking authority to the Executive and (2) excessive industry influence over market governance.

authors. Yale Law School, J.D. 2023. Harvard University, A.B. 2015. Thank you to Professor Jerry Mashaw for supervising the early stages of this project and for his support throughout. I am also grateful for invaluable input from the following people at various points in the creation of this Note: Amy Kapczynski, Alvin K. Klevorick, William J. Novak, Nicholas R. Parrillo, Sanjukta Paul, K. Sabeel Rahman, Tim Wu, Brandon Baum-Zepeda, Bruno Renzetti, and Leah Samuel. And I am indebted to Sachin Holdheim and the other editors of the Yale Law Journal for improving this Note through their excellent feedback. Finally, I thank the Law & Political Economy Project’s Anti-Monopoly and Regulated Industries Summer Academy for introducing me to this field and inspiring my research. All errors are my own.

Introduction

America has a monopoly problem. And the federal government is not structured to solve it.

This was the not-so-hidden message of a July 2021 address that President Biden delivered from the White House. Flanked by recently appointed administration officials known as intellectual leaders of a growing antimonopoly reform movement, Biden signed an executive order designed to “bring[] fair competition back to the economy.”1 The President decried the trend “over the past few decades” of “less competition and more concentration” across many sectors.2 He echoed an argument popularized by his appointees—such as Lina Khan, Chair of the Federal Trade Commission (FTC), and Tim Wu, then-Special Assistant to the President for Technology and Competition Policy—that antitrust enforcers in previous administrations had “chose[n] the wrong path” by “following the misguided philosophy of people like Robert Bork” and “pull[ing] back on enforcing laws to promote competition.”3 Consistent with research findings of numerous economists and legal scholars, Biden blamed this dominant approach to competition policy for contributing to higher prices, lower wages, fewer small businesses, and less innovation and investment.4 In short, he declared, “I believe the experiment failed.”5

President Biden’s Executive Order on Promoting Competition in the American Economy6 was a distinct milestone in the effort to combat monopoly power not just because it called for a change in substantive policy toward corporate consolidation. Its transformative potential also lay in its reconfiguration of the institutional structure of antimonopoly law and policy within the federal government—what this Note calls the separation of powers in antimonopoly law.

This separation of powers took shape through an array of statutes, Supreme Court decisions, and agency practices and norms. It emerged as a reaction, in large part, to the National Industrial Recovery Act (NIRA), a centerpiece of the first New Deal that authorized the President to unilaterally set the rules of industrial competition and coordination by using and combining multiple Progressive Era antimonopoly tools. It served to correct—and then overcorrect—for the NIRA’s significant failings.7 And this separation of powers in antimonopoly law has substantially persisted to this day.8

But the post-NIRA order is no longer tenable. Faced with mounting corporate consolidation, the Biden Administration is considering—and beginning to implement—reforms that would refashion antimonopoly law’s institutional structure. Three reforms are of particular concern to this Note:9

1)Antitrust rulemaking under the FTC’s authority to prohibit “unfair methods of competition” (UMC),10 which the agency has traditionally invoked only in adjudication and enforcement;

2)White House coordination and review of industry-by-industry agency rulemaking; and

3)Sectoral bargaining, in which government, business, and labor would jointly negotiate wages, benefits, and other terms on industry-wide bases.

While many scholars and advocates have examined these proposals’ substantive policy merits,11 this Note is the first to attend to their combined impact on the institutional structure of antimonopoly law.12 This Note argues that these proposals would shift decision-making over key aspects of antimonopoly law and policy closer to the ambit of the President’s unilateral discretion.13 Further, they would do so in ways that mirror the President’s unprecedented authority under the NIRA, authority that Congress and the Supreme Court dismantled in the NIRA’s wake. As a result, the NIRA and its aftermath hold critical yet underexplored lessons for this new era of antimonopoly presidential administration. This Note explores those lessons.

The NIRA authorized the President to approve “codes of fair competition” proposed by trade or industrial groups as long as such codes met a few broad substantive requirements.14 The codes, once approved, would bind all players in the industry and were exempt from the antitrust laws.15 While the NIRA contained little guidance as to what these codes could include, the hundreds of codes that President Roosevelt went on to approve included provisions for maximum working hours, minimum wages, minimum prices, cost standardization, requirements for open-price systems, and limitations on production, among other regulations.16 The statute also gave the President near-complete discretion to create and structure agencies to implement the Act and to determine procedures for review, approval, implementation, and enforcement of the codes.17

Though the degree of unilateral authority was new, the Act’s conceptual framework of industrial coordination and “fair competition” was not. This framework built upon and combined a varied set of economic policies that had developed over the previous half century to govern a newly industrialized, nationalized, and monopolized economy. These strategies represented seminal components of what this Note refers to collectively as “antimonopoly law.” Antimonopoly law comprises the areas of law that set the rules for economic competition and coordination: which economic actors get to coordinate, which have to compete, and on what terms.18 The NIRA empowered the President to choose among and combine these strategies into an economy-wide whole. In this way, the NIRA is best understood as granting the President unilateral, almost uninhibited authority to organize, oversee, and calibrate the degree of coordination and competition in the economy. As preeminent historian of the NIRA Ellis Hawley put it, “Congress, in effect, had refused to formulate a definite economic policy . . . . It had simply written an enabling act, an economic charter, and had then passed the buck to the Administration.”19

Ultimately, the Supreme Court ruled that Congress passed the buck too far. In a unanimous 1935 decision in A.L.A. Schechter Poultry Corp. v. United States, which united a frequently fractured Court, the Justices held the central section of the NIRA to be an unconstitutional delegation of Congress’s legislative authority to the President with too few procedural or substantive restraints.20 After the NIRA’s demise, a combination of court doctrines, administrative practices, and new procedural and substantive statutes governing the burgeoning administrative state divvied up into three primary domains the powers over economic coordination and competition that the NIRA had temporarily concentrated in the President’s hands:

1)Antitrust enforcement, conducted via case-by-case adjudication subject to common law-like doctrinal development by courts;

2)Industry-by-industry regulation, split across dozens of administrative agencies, many of them with at least some degree of independence from the President, and subject to the procedural constraints of the Administrative Procedure Act and other statutes; and

3)Labor law, subject to the National Labor Relations Act’s policy of worksite- or firm-specific bargaining, restrictive judicial doctrines, and practices of case-by-case adjudication.

This institutional structure cabined the President’s discretion to allocate and calibrate economic coordination and competition by carving out significantly greater roles for the courts, Congress, and agency officials and procedures. Though it emerged out of valid concerns, the post-NIRA framework overreacted to the NIRA’s ills and limited the possibility of proactive, systematic, participatory, economy-wide competition governance.

The three current proposals noted above—FTC antitrust rulemaking, coordination and review of competition rulemaking, and sectoral bargaining—would substantially repair that overcorrection. While none of these reforms would exactly reproduce the NIRA either in structure or in substantive goals, each would reconstitute important elements of the presidential antimonopoly authority that the post-NIRA regime divided up. The key question, then, is whether these powers can be recentralized without recreating the NIRA’s two fundamental flaws: (1) its unconstitutional concentration of unchecked policymaking discretion in the presidency, and (2) its excessive industry influence, both of which led to poor policy outcomes. This Note argues that they can.

Part I examines the structure and implementation of the NIRA to argue that it is best understood as a delegation of maximal authority to the President to calibrate and organize economic competition and coordination in ways that built upon Progressive Era antimonopoly policies. Part II analyzes the Schechter Poultry decision and its aftermath, which culminated by the mid-1940s in a new and enduring separation of powers in antimonopoly policy. Part III introduces three key antimonopoly proposals that legal scholars and policymakers have begun to embrace. It argues that each would shift antimonopoly authority toward the President in ways that mirror (but do not exactly replicate) the key authorities the President briefly held under the NIRA.

Finally, Part IV applies the lessons of the NIRA to these modern proposals to show that the proposals, properly implemented, can overcome the twin constitutional and democratic challenges that doomed the NIRA. First, today’s proposals—particularly FTC UMC rulemaking—already avoid the nondelegation issues that led the Supreme Court to invalidate the NIRA in Schechter Poultry, despite opponents’ claims to the contrary.21 Such rules would satisfy both the Court’s longstanding “intelligible principle” test for legislative delegations, 22 as well as the more historically and structurally grounded nondelegation test that this Note proposes. FTC antitrust rules, as proposed to date, also should not be interpreted to violate the related “major questions doctrine” under a proper test. Second, none of the three proposals would engender the industry capture and democratic deficits of the NIRA’s code-making process. In implementing the proposed policies, the Biden Administration can deploy tools of participatory administration to encourage democratic participation and enhance the countervailing power of underrepresented groups.

It may seem surprising, even alarming, that three of today’s most ambitious antimonopoly proposals all strongly resemble components of the NIRA, when the NIRA is widely regarded as a legal and policy failure.23 In fact, similarities between the Biden Administration’s new approach and the NIRA’s discredited one have already been a source of conservative criticism.24 But these similarities are neither a coincidence nor a mistake. As this Note will show, the NIRA crudely combined market-governance approaches that had developed over the previous half century in direct response to the Gilded Age, America’s first crisis of private monopoly power. Today, facing a gridlocked and gerrymandered legislature, alongside a judiciary that has developed increasingly promonopoly doctrines, policymakers are rightly looking to the presidency as a key vehicle for reviving antimonopolism.25 These realities have, in other words, put NIRA-style presidential antimonopoly policymaking back on the table. Only by learning from the NIRA’s mistakes can this new effort succeed where the NIRA failed. This Note seeks to aid that learning.