No matter what NPR and Politico say, Joe Biden cannot Thanos-snap his fingers in an E.O. and make half the red tape disappear.
No matter what NPR and Politico say, Joe Biden cannot Thanos-snap his fingers in an E.O. and make half the red tape disappear.
T o understand why Joe Biden bothered to issue an executive order on Friday that is 50 percent longer than the Constitution yet contains less of interest than the average iTunes user agreement, you first have to remember how our Pyongyang Press works. Biden can attract hours of fawning coverage for picking a dandelion or ordering ice cream. Biden could break four bones tumbling down Air Force One, and the headlines would be, “Biden Shows Strength Compassion, Courage, Fortitude, and Resilience in Journey through Hell and Back,” followed quickly by “Republicans Pounce on Biden Misstep.”
Every time Biden does anything, no matter how trivial, the media will be there to sing hosannas. If doing things earns him fawning coverage, he has a strong incentive to do things. Most reporters clearly didn’t bother to read the 72-point, 45-page Friday-afternoon-in-summer executive order. Their stories tend to link back not to it, but to an imposingly labeled “White House Fact Sheet,” i.e. press release, that promises America a bunch of things will happen (“save . . . money on their Internet bills,” “lower prescription drug prices”) that are merely stated goals in the executive order itself. Huge chunks of the executive order are simply reminders that given laws exist and should be enforced. In other words, this elephantine project is more or less just a campaign speech that the press is treating as actual policy.
First, I’ll share some of the fist-pumping, Champagne-spraying headlines about Biden’s exec order, then I’ll tell you about the very, very little that’s in it. (Note that there is zero difference in tone between the overtly progressive outlets and the ostensibly nonpartisan press. Imagine if everything we read about the Trump administration for four years came from people who seem to be auditioning for a job at Newsmax).
Check these out:
“Here’s How Biden’s New Executive Order Could Shake Up Big Ag” (Mother Jones)
“Biden signs sweeping executive order that targets big tech and aims to push competition in US economy” (CNN, which put five reporters on this chunk of press-release journalism)
“Biden signs order to tackle corporate abuses across US economy” (Reuters)
“Biden launches assault on monopolies” (Politico)
“Joe Biden Just Threw Down the Anti-Monopoly Gauntlet — But One Big Question Remains” (The Nation)
“Biden’s bid to take on big business sets off battle over who holds power in the U.S. economy” (Washington Post)
“Biden calls for efforts to lower drug prices as part of executive order to increase competition” (Washington Post)
That last one, though framing matters favorably to the president, at least hints that the E.O. is just a “call” for “efforts.” And kudos to perhaps the least gullible of the big outlets, the New York Times, which curbed its enthusiasm with this not-inaccurate headline: “Biden Urges More Scrutiny of Big Businesses, Such as Tech Giants,” which fed into a story that used verbs such as “intended” and “encouraged” that downplayed the impact of the E.O. before segueing into analysis from skeptical experts and a seeming acknowledgment that the whole thing amounted to mere Biden gum-flapping: “numerous parts that the White House says will benefit workers,” etc.
The text of the document indicates that we’ve entered an era when executive orders are essentially publicity materials rewritten by lawyers. I do not fault reporters for failing to read the E.O. because it was clearly not meant to be read. To chew through this tasteless 45-page block of bland, fibrous, celery-tasting verbiage (especially on a Friday afternoon when margaritas on Rehoboth Beach beckon) is a task that would make a Navy SEAL blanch with terror. Anything but reading the document! cry reporters. Okay, here’s an executive summary of the executive order, replies the White House. Just take our word for what’s in it, we’re all Democrats here.
The basic structure of the document is as follows: In each section, hundreds of words of uncontroversial but superfluous space-filling (“Robust competition is critical to preserving America’s role as the world’s leading economy”) lead to campaign-speech-style affinity signaling, otherwise known as applause lines. Except they’re not applause lines if they’re in a document no one is going to read, much less read aloud to a delirious audience. Example: “Americans are paying too much for prescription drugs and healthcare services — far more than the prices paid in other countries.” (Yes, says the student of politics, we know that, which is why every presidential candidate brings this up in every campaign speech going back 30 years. Whatcha gonna do about it, Mr. President?)
The wouldn’t-it-be-nice-if-things-worked-better chatter leads to persnickety references to the exact page of the U.S. code that roughly applies to the subject because whoever wrote this stemwinder thought, not incorrectly, that poop-peppering it with recommendations to “see 35 U.S.C. 100 et seq” would ensure that no one ever reads it. This kind of thing leads to dull promises that commissions will be formed, reports will be issued, and agency heads admonished to “consider,” “encourage” or (in one case) be advised that they are “encouraged to consider” how to make their bailiwicks better.
Now for the meat. (Phil Collins drum break in the middle of “In the Air Tonight,” please.)
The big payoffs — the wowsers, the money shots, the Captain-America-picks-up-Thor’s-hammer crowd pleasers, the passages that made all of those headline writers punch out their dreamy “Biden smites the Monopoly Man as the little guy regains hope” headlines — are the passages where Biden tells agency heads he appointed, and who work for him, that they have X amount of time to publish a proposed minor rule change so that the process of actually changing a minor rule can begin and the rule might actually conceivably get changed around the time the Washington football team wins its next Super Bowl.
The big consumer-protection detail relating to phones, for instance, is this: The head of the FCC is told to “consider . . . prohibiting unjust or unreasonable early termination fees for end-user communications contracts, enabling consumers to more easily switch providers.” Consider. NPR reported this as a move to “ban steep early termination bills.” I can consider buying a zeppelin, but that doesn’t mean it’s going to happen. Amusingly enough, Joe Biden’s ideas for the FCC (welcome back, net neutrality! I can’t believe we survived without you) are being held hostage by . . . Joe Biden, who hasn’t nominated a tie-breaking fifth member to the commission. Said appointee will have to win Senate approval, which could take months.
The Department of Agriculture directives are prefaced by this: “The Secretary of Agriculture . . . shall consider initiating a rulemaking or rulemakings . . .” that bananas will grow in Maine in December, maybe. Who cares? It’s all aspirational after that point. There’s no real policy to prohibit all the things Mother Jones wants prohibited or to protect all the people Mother Jones wants protected. Almost everything in the E.O. carries no more force than Biden calling in all of his cabinet secretaries to indicate the direction he’d like them to take.
Why even bother writing this stuff down at this point? Until there’s policy, it’s just blather combined with boilerplate: blatherplate. Not since Jill Biden’s dissertation has the Biden family pulled off such a malarkey-driven effort to cover a sheaf of pages with filler, drivel, and dross.
All those headlines about drug prices and body-slamming Big Pharma? They derive from HHS being told to “submit a report . . . with a plan to continue the effort to combat excessive pricing of prescription drugs and” blahdiddly-blah blah. Old joke repurposed for the 202: How do you make the government gods laugh? Make a plan. Remember the age-old promise to crush drug prices via importation from Canada, the equivalent of Sinatra rolling out “My Way” one more time? The E.O. vows that “The Commissioner of Food and Drugs shall work with States and Indian Tribes that propose to develop section 804 Importation Programs in accordance with the Medicare Prescription Drug, Improvement, and Modernization Act of 2003.” So, er, continue implementing the George W. Bush-era law on that. Not sure that merits a “Biden Targets Tech, Drug Prices, in Sweeping Competition Order” headline, Bloomberg.
If you got the impression that the E.O. will “curtail non-compete clauses” (The Hill), “restrict non-compete agreements” (NPR) or “rein in worker non-compete clauses” (CNBC), note the actual language: “The Chair of the FTC is encouraged to consider working . . . to curtail the unfair use of non-compete clauses.” True, it’s a good bet that the FTC (under left-wing activist Lina Khan) will in fact try to do something like this someday, once Khan works out what constitutes an “unfair” clause in an agreement between an employer and a worker, but as the National Law Review drily informs us, whatever happens will be “the subject of litigation challenging [the FTC’s] authority to issue a rule.”
Each section of the order will lead the astute reader (i.e., not a White House reporter) to wonder why, if these things were so easy, the Obama-Biden administration failed to issue E.O.s to fix them. (It did, in many cases, but “Few agencies followed through on the White House’s prodding,” Politico notes sadly.) Zoom out a bit, and the document is kind of funny: In our administrative state, after half a century of the kind of demon growth more commonly associated with Gremlins and pond fungus, even an executive order from the head of the executive branch directed at his own appointees and employees cannot hope to accomplish much more than launching the punitively ponderous process of implementing a meek little rule change.
A great example is the much-ballyhooed passage on hearing aids. You can’t get them over the counter. Why? The federal government won’t allow it. It’s an FDA reg. But it gets better: The FDA relaxed those rules because President Trump signed a law in 2017 requiring this. (NPR reported this as, “The Obama administration tried to make it possible to buy more types of hearing aids at pharmacies, just like reading glasses” and forgot to mention Trump actually did the thing it credits Obama with trying to do.)
But OTC hearing aids haven’t appeared yet, because the FDA says it’s been too busy with the pandemic and stuff. The deadline for the FDA rule change was 2020. So now the E.O. is telling the FDA to get a move-on with the hearing-aid sales deregulation. How to do that? They still haven’t published the proposed rule change. Biden wants this to happen within 120 days. So, this thing that the FDA couldn’t get done in three years, it’ll now figure out how to do in four months.
If so, by Thanksgiving, maybe, the rule will be published for notice and comment, at which point it’ll take incoming from all of the health professionals with an interest in the matter who will explain why they would really strongly prefer you not be able to buy an OTC hearing aid (the reasons are as follows: They’d lose out on their middleman fees). After that stage, other relevant agencies will be invited to weigh in, then the matter has to go through the Office of Management and Budget. . . .
You get the idea. No matter what NPR and Politico say, Joe Biden cannot Thanos-snap his fingers in an E.O. and make half the red tape disappear. Are you holding your breath, Grandma and Grandpa? I hope you are not. Maybe we’ll see OTC hearing aids by the time the 2024 campaign starts up, maybe we won’t.
Watching Biden trying to machete his way through the thickets of government he helped grow for half a century is like watching Jordan Belfort trying to drive his Lamborghini home from the country club on a mule-felling dose of quaaludes. You want to drive the hot car without damaging it, maybe go back in time and don’t take the extra-strength Lemmon ludes. You want the government to be lean and agile, maybe go back in time and don’t spend 1973-2017 feeding it Twinkies and strawberry milkshakes.