Last month, President Joe Biden issued an executive order on promoting competition in the U.S. economy (the “Order”). Declaring that “excessive market concentration threatens basic economic liberties, democratic accountability, and the welfare of workers, farmers, small businesses, startups, and consumers,” the Order encourages federal authorities to target business practices and governmental regulations that stifle competition.
While the Order unquestionably is an attention-grabber on Wall Street, leaders on Bishop Street, as well as state and local policymakers, should pay close attention to what it says about how the federal government might change the way business is done in Hawaii and elsewhere.
The legalities of the Order are fairly simple: Among other things, it encourages federal agencies to use their resources and authorities to fight illegal monopolies, and curtail other business practices and governmental regulations that restrain competition. Notably, the Order does not create new legal obligations for companies. However, it does highlight focus areas for federal enforcement and rulemaking, giving companies fair warning of what may come soon and an opportunity to assess the strength of their compliance programs.
Leaders in Hawaii should heed the president’s call to action, due to the broader impact his efforts to promote competition may have on business and governance in Hawaii. The Order notably conveys the federal government’s intent to address issues that traditionally fall within the bailiwick of state and local authorities, such as “overly restrictive” occupational licensing requirements and non-compete agreements in employment contracts.
These legal obligations and contractual arrangements, the president argues, “constrain the growth and dynamism of our economy, impair the creation of high-quality jobs, and threaten America’s economic standing in the world.”
To be sure, concerns about monopoly power in Hawaii are nothing new — the state has a history of market dominance by a handful of companies. Nor are worries that getting a business off the ground in Hawaii can be a challenge — a study by the Institute for Justice indicates that Hawaii has the most burdensome licensing laws in the nation, requiring, on average, nearly three years of education and experience to perform dozens of lower-income occupations.
Nonetheless, Biden’s unprecedented drive to unleash the full force of the administrative state to combat practices that undermine competition is an important development, because, among other things, it may put to test — as a matter of law and public policy — existing understandings of what it means for a business practice or state law to be at odds with consumers’ best interests.
What’s more, the president’s push to promote competition comes when Hawaii appears to be at an economic inflection point, necessitating honest and thoughtful discussions about how to better diversify the state’s economy. Whether plans to wean the state from its overreliance on tourism will take a cue from the Order remains to be seen, but the stakes could not be higher.
Hawaii’s real gross domestic product for the quarter ending in March increased 4.5%, placing it comfortably near the bottom of all U.S. states during the same period. The median sales price of a single-family home in Honolulu is $992,500, while median household income is under $86,000. A recent CNBC study ranked Hawaii the most expensive state in the country to live in. And year in and year out, residents grow increasingly accustomed to the all-too-familiar refrain from Hawaii’s young people: “I love my home, but simply can’t afford to live here.”
Whether more competition is the panacea for Hawaii’s economic woes is unclear. Nonetheless, leaders in the Aloha State are well-advised to consider how the president’s agenda could impact the way business is done in Hawaii, and, in doing so, ask tough questions about whether existing laws and power structures best advance the well-being of the people of Hawaii.
Kenji Price is a partner at McDermott Will & Emery based in Washington, D.C., focusing on white-collar government investigations, internal investigations and compliance counseling. He previously served as the U.S. attorney for the District of Hawaii.