An obscure government agency, the International Trade Commission, is charged with protecting American business from intellectual property theft, copyright infringement, and unfair trade practices. With these laudable goals, the ITC has unfortunately sprung forth and stormed beyond the scope of its creation to permit and nurture bad faith complaints that destroy the very American enterprises it was designed to protect and promote.

Michael Rosen of the American Enterprise Institute describes the ITC as “a quasi-judicial, independent federal agency” that was created to encourage and guard American manufacturing and intellectual property. The intended mission of this omnipotent government agency was to protect the theft of American intellectual property rights. Sadly, the ITC has acted outside public notice, unconstitutionally morphing into a platform for frivolous complaints that end up punishing law-abiding American businesses the agency is supposed to protect and rewarding foreign IP competitors. ITC’s wrongheaded existence costs American industry millions of dollars yearly. IT'S NOT EASY BEING GREEN: REVERSE ATMS ARE ON THE RISE AMID DECLINING CASH USE

The seeds of destruction lie in the unfettered and unguided power given to the ITC, as described by Rosen , “to investigate potential infringement of the intellectual property of entities with a ‘domestic industry’ related to their IP and to bar the importation of products found to infringe through an ‘exclusion order.’” One of the problems with this is that “domestic industry” is defined in an unreasonably vague and anti-American, Orwellian manner that allows foreign companies to take advantage of the ITC to steal IP.

Foreign interests use the ITC to hobble American innovation. These overseas companies, which do all their manufacturing abroad and do not even have a product that uses their asserted patents, are able to gain leverage over U.S. companies by filing complaints against them with the ITC. Often, the complainants, “non-practicing entities,” better known as patent trolls, come to the ITC even though they do not offer competing products that substitute for the accused products they seek to ban.

The ITC, in theory, is required by law to consider the harm to U.S. public interest when deciding whether to issue a product ban. But the ITC has not used any U.S. public interest standards to stop an exclusion order since the 1980s. The agency simply does not care who is harmed by its actions.

While foreign companies have free rein to make complaints to the ITC, U.S. companies must operate in constant fear of falling out of compliance with the agency’s regulations. According to Clyde Wayne Crews at the Competitive Enterprise Institute, the annual costs of compliance with all federal regulatory mandates are around a staggering $1.9 trillion for American businesses. That is more than the entire GDP of countries such as Canada or India. These mandates are crippling to businesses because compliance requires an extraordinary amount of nonproductive time, as well as the divergence of capital for expensive lawyers and pricey experts to defend American interests against the ITC.

The ITC has charted a ruinous and self-determined mandate to decide matters it is neither competent nor empowered to determine, all to the detriment of industry and the American economy. Its vague rulemaking and burdensome regulations are far from what the Founders intended when they wrote the Constitution, which envisions a lean and austere federal government with liberty as the rule and government regulation as the exception. We have turned this understanding on its head. The consequence is a jobs-killing, consumer-unfriendly, regulatory Leviathan, of which the ITC is a primary member.

There is legislative hope, borne of a growing recognition of the wayward destructive forces used by the ITC. Reps. Suzan DelBene (D-WA) and David Schweikert (R-AZ) introduced the bipartisan “ Advancing America’s Interests Act ,” which would modernize the ITC by establishing an appropriate “domestic industry” standard and reaffirming the ITC’s public interest obligation. This legislation also critically provides that the ITC will grant an exclusion order only if it is in the public interest — the opposite of the current law, which automatically excludes a product unless the public interest is harmed by its exclusion.

Reining in this agency’s power, which has for too long run unchecked, is critical to the survival of American industry.

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W. Bruce DelValle is a constitutional law, technology law, and international law litigator. He is a native Texan who grew up on the Gulf Coast of Florida, graduated from Penn State University, and worked as a nuclear power engineer prior to graduating cum laude from Washington and Lee University School of Law.