- - Friday, February 2, 2018


President Trump’s announcement last Thursday of a new slate of nominees to the Federal Trade Commission signifies much more than a simple overhaul of the commission itself. In a much broader sense, he is signaling how serious he is about reversing the regulatory overreach that accelerated during the Obama administration. On both counts, conservatives have reasons to celebrate.

The Reagan administration popularized the adage “personnel is policy,” and Trump’s FTC nominations announcement demonstrates that he understands the inextricable link between personnel and policy. The president’s economic agenda, which features promoting economic liberty and protecting American intellectual property and patent rights, requires personnel - especially at the Federal Trade Commission - who share those goals. These new nominees, if confirmed by the Senate, will be positioned to implement key aspects of Trump’s economic agenda.

The Federal Trade Commission is an independent agency of the federal government, with the mission of promoting consumer protection. The agency operates with a five-member body and its decisions have far-reaching implications for intellectual property and patents, business practices, consumer rights, and government oversight of businesses, among other issues.

The new direction that Trump will now be able to forge at the FTC owes much to its soon- departing acting chairman, Maureen Ohlhausen. On January 23, President Trump announced that he plans to nominate Ohlhausen to a seat on the United States Court of Federal Claims. Her leadership will be missed at the FTC, but the work she has done there over the past several years will be able to continue, thanks to Trump’s strong nominees to the commission.

Ohlhausen’s legacy at the FTC includes her record of standing up for patent rights and her willingness to speak out against the Obama Justice Department for its hostility toward patent rights. She also has been a thought-leader and strong advocate for economic and consumer liberty. Back in 2003, while working at the FTC’s Office of Policy Planning, Ohlhausen helped write a report on the economic harm that occurs when states hamper or restrict wine sales on the Internet. That report, which has become the authority on this topic, was cited by the Supreme Court in the 2005 Granholm v. Heald decision.

Perhaps Ohlhausen’s greatest contribution to the FTC, however, is her governing philosophy, which she outlined in a speech in 2015 at the American Enterprise Institute. Ohlhausen explained in that speech, and in subsequent interviews, that she believes the FTC, like other government agencies, must be held in check by a sense of “regulatory humility.” From her perspective, that “regulatory humility” translates into a recognition that government regulators do not know everything, and, therefore, should not attempt to regulate everything.

That hyperactive desire to regulate everything was on clear display in the Obama administration - at the FTC and other agencies. The heavy-handedness of the Obama regulators is precisely what President Trump would like to reverse, and is what the new FTC commissioners will be tasked with doing.

Ohlhausen complemented her viewpoint on regulatory humility with her commitment to government involvement in cases of true anticompetitive behavior and harmful implications for consumers. In this way, she struck the ideal balance between regulatory oversight and regulatory restraint - and in so doing, she provided the perfect model for other federal regulatory agencies.

That balance between protecting consumers without crossing the line and interfering in the marketplace was the driving force behind Ohlhausen’s work. In an interview with Reason Magazine, she articulated that her job is to “promote greater competition and choices for consumers, but also liberty for people who want to enter these businesses.”

Ohlhausen, as she transitions to the U.S. Court of Federal Claims, will leave behind an entirely new group of commissioners, who would do well to use her regulatory philosophy as the new standard for the commission.

President Trump should be thanked for his nominations to the FTC, and the Senate should do its job now to expedite the nomination process for these nominees.

As President Trump seeks additional ways to reverse the regulatory damage of the Obama years, the FTC revamp serves as a good template for the entire executive branch - more nominations to replace the Obama holdovers and make sure the nominees share Ohlhausen’s prudent approach to regulating.

New federal government personnel with a policy agenda rooted in the Constitution and principles of limited government? That’s a win-win for conservatives.

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