America ratified the Constitution with the understanding that the federal government would be one of limited, enumerated powers. That understanding was quickly upended.
Within a few decades, the commerce clause had been expanded to reach nearly every commercial activity, the necessary and proper clause had been transformed into the “elastic clause,” and the spending and taxing powers were explicitly interpreted to allow Congress more or less to regulate fields beyond its constitutional bailiwick. If those participating in the ratification debates had known that “limited, enumerated” powers meant unlimited and unchecked federal authority, they would have voted down an already controversial proposal.
Centuries later, the country has grown accustomed to a federal government with few constitutional constraints (at least ones that are consistently and clearly enforced). Creative interpretations of the Constitution continue to expand federal authority.
A few examples stand out. In NFIB v. Sebelius, the Supreme Court rewrote the Affordable Care Act so that a “mandate” could be read as a “tax.” In Gundy v. United States, the court upheld a delegation of Congress’s legislative power to the attorney general by finding a constraining “intelligible principle” in the blatantly broad directive that the attorney general “specify the applicability” of the Sex Offender Registration and Notification Act.
This is an incomplete list, but the upshot is clear: Hundreds, if not thousands, of slight deviations from the constitutional order imagined by the founders and agreed to by the people have accumulated and decimated the idea of a federal system of government.
The Federal Trade Commission’s expansive regulatory agenda is perhaps the best sign of our constitutional drift. A slew of rulemaking proceedings shows how the FTC has leaned into the incredible and, to the founding generation, unbelievable amount of power that has amassed in our fourth branch of government.
The FTC’s recently finalized rule banning noncompete agreements typifies its willingness to bypass constitutional safeguards if it means driving toward certain policy ends. The ban is forecasted to affect 30 million contracts, many of which involve workers in our most important industries. Regardless of whether the ban is good policy, it is a direct circumvention of how major economic and political questions are supposed to be addressed in our constitutional order.
We all learn that a bill becomes law by going through the intentionally arduous and inefficient legislative process. The founders concluded that the deliberation, transparency, and accountability brought on by that process far exceeded the costs. Yet the ban was subject to a different, far less onerous process — one led by unelected commissioners, overseen by unknown bureaucrats, and ignored by the vast majority of the public. Despite the manifold constitutional problems associated with this process, those who agree with the policy aims of the majority of FTC commissioners have persistently and vigorously defended the commission’s action.
In fact, the FTC’s efforts to expand its powers and test constitutional limits are just getting started — observers expect that within weeks, the FTC will announce a commercial surveillance rule that addresses many of the privacy- and data protection-related topics being discussed by Congress. This action is all the more concerning given that the commission is stepping on Congress’s toes. The American Privacy Rights Act, which addresses many of the same topics as the FTC’s likely commercial surveillance rule and is now before our elected representatives, should not have to compete with the FTC’s initiative for attention.
Our constitutional order can only drift so far from its anchor in the ideals of liberty, popular sovereignty, and federalism before it becomes unrecognizable and unsustainable. It may be the case that the FTC’s priorities and policy views are worthy, in a vacuum, of broad support. That support, however, should be secondary to adhering to constitutional processes and principles.
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The FTC, and every agency for that matter, should assume a stance of regulatory humility: the idea that any administrative agency is a creature of Congress and just one part of a larger constitutional system that relies on process to protect the liberty of all. It may not be efficient, but it is how our Constitution was designed and ratified. Moreover, it’s how the chief proponents of the FTC thought of the agency.
As Chairwoman Lina Khan pointed out in the FTC’s annual report, President Woodrow Wilson supported the FTC, in part, because “the businessmen of the country desire the advice, the definite guidance and information which can be supplied by an administrative body, an interstate trade commission.” What businesses do not desire and our Constitution does not accept is an FTC or any agency that usurps the power of Congress and, by extension, the power of the people.
Kevin Frazier is an assistant professor at St. Thomas University College of Law.