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![handle is hein.amenin/aeiaeln0001 and id is 1 raw text is: Key Points
SThe Federal Trace Commission (FTC) is posed to issue antitrust regulations, a departure
trom over a century of antitrust lavv development through acudication that could affect
much or the US economy.
The FTC Ac; does not give rhe agency authority to issue antitrust regulations, and the
Sole legal basis for Joinr so-an appellate court decision frornm the 1970s-does not
comport with contemporary statutory construction or administrative law.
4 The extravguant regulatory power over virtuaily the whole econory that the FTC clairns
Congress delegated to it wouid violate the Constitution's separation of powers.
In July 2u21, President Joe Biden issued his fxec-
utive Order on Pronmoting Competition in the
American Economy (E ' The EO called for
issuing regulation after regulation, including a
bevy of rules concerning unfair method[s] of
cormpetion (UMC), to be promulgated by the
Federal Trade C ommission (FTC)? US antitrust
law has been developed through adjudicated deci--
sions for 13 Years, and the commission has
brought lawsrts to enforce antitrust law since it
opened its doors in 1915. Political progressives are
instead calling for the agency to issue antitrust
regulations with the force of law, and my col--
league Chair lina Khan indicated recently that one
such rule will be issued soon4
The power the cominission would assert in
promulgating antitrust regulations is illegal and
unconstitutional. Neither the text nor the struc-
ture of the FTC Act support it. Even if they did,
delegating to the commission plenary power over
vrsuaiiy all US economic activity wourd violate
the separation of powers embedded in the US
Consttutuon.
The EO contemplates antitrust regulation for
everything from privacy to enp] oyinett contracts
to intellectual property to devices: Chair Khan
described the agency's power as shap[ing] the
distribution of power and opportunity across our
econonry.6 Our Con tituton does not abide an
agency arrogating to itself the ability to govern any
private econmioc affar, e pecially without a clear
mandate from Cngresc, So few people grabbing
so much powei to govern so many with so little
check on it flies in the face of the linited, divided,
and democratic structure of the United States
government. In issuing right-line rules where the
law commands a careful analysis of conduct in light
of the market wherein it takes place, antitrust reg-
ulation would also contravene antitrust law itself.
It is not too late. The FIC should turn back.](ViewImageLocal?handle=hein.amenin/aeiaeln0001&div=1&collection=&method=preview&ext=.png&size=3)