D.C. Memo: FTC's Khan Responding to Demise of Chevron Deference

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Khan: Federal Trade Commission Chair Lina Khan said her agency is responding to the new regulatory landscape created by recent Supreme Court rulings designed to check the power of administrative agencies. "For federal agencies across the board, we're having to monitor that very closely," Khan said Friday at the Council on Foreign Relations. "Overall, we are seeing more skepticism around just assuming that agencies can do certain things and a greater desire to see Congress be very explicit in its delegation to agencies."

FTC Chair Lena Khan with Council on Foreign Relations President Michael Froman

One Supreme Court ruling now requires agencies to have clear congressional authorization to tackle major political and economic questions while another bars courts from automatically deferring to agency interpretation of ambiguous laws. Khan said that Congress in a 1914 law called on her agency to prohibit unfair methods of competition – a general directive because Congress "wanted the law to be able to evolve and stay relevant even as there were evolutions in business models and technologies and markets, so they wanted that institutional durability." But that approach might not pass muster with today's Supreme Court. "If instead we're going to now have courts second guess that type of broader delegation, then that's ultimately going to be something that Congress has to revisit," Khan said. Asked by CFR President Michael Froman if she thought Congress was ready to tackle that role, Khan replied, "It's an open question." Some in the audience started to laugh.