Administrative State Hits Warp Speed

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As my colleague Ryan Young noted on X, this week’s Federal Register is a bumper edition of new rules and regulations, almost triple the normal pace.

This is indeed a sign that the deadline for Congressional Review Act (CRA) scrutiny by the next Congress is drawing near. Regulators want to make sure their rules are going to be reviewed by this Congress and with a president who will veto any successful CRA efforts to strike down the rule.

However, it is also notable that the rules coming out this week are truly significant in their size and sweeping nature. And many of them are being proposed without clear authority for the agency to do so. Here are just some of them:

  • The Federal Trade Commission finalized a ban on non-compete clauses. This was remarkable for several reasons. First, the final was more severe than the proposed rule, banning all non-competes, even for senior executives. Secondly, there is still significant debate over the effect of non-competes, which suggests that an approach that leaves it up to the states would be better than a national ban (I am personally not convinced that non-competes for junior employees have the beneficial effects that others claim for them.) Finally, there is considerable evidence that the FTC does not actually have the power to issue such a rule at all, as Commissioner Holyoak said front and center in her statement. This one is going to court, sooner rather than later.
  • The Federal Communications Commission reinstated its Obama-era rule that subjects internet service provision to Title II regulation, which is the sort of rule used to regulate passenger railroads. What is particularly illuminating about this action is that when former FCC Chairman Ajit Pai rescinded the rule in 2017, there were apocalyptic claims about how this would ruin the internet for every user. In fact, speeds went up and costs declined. So much for evidence-based policy-making (and this Tweet is still up.) As my colleague Brian Rankin argues in the Wall Street Journal, there’s a good chance this qualifies as a major question under Supreme Court Doctrine. Back to court we go . . .

Read the full article on National Review.