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Here are my thoughts on what the FCC & FTC should do regarding the Executive Order on social media. I think that the FCC & FTC should, as a matter of constitutional avoidance, and avoiding ultra vires acts, decline to act on any rulemaking petition from the NTIA (1/several)
1. The commissioners of the FCC & FTC are independent and cannot be fired for declining to take up the President's suggestions. They have all sworn to uphold the Constitution. Avoidance suggests staying away from a rule-making that is highly like to violate the Constitution..
That's because (a) the executive order itself is self-evidently an act of intentional retaliation for disfavored speech; and by enforcing it through rule-makings, the agencies would become accomplices to the retaliation, and
(b) the rules themselves, which would necessarily specify how the platforms exercise editorial discretion, would be of dubious constitutionality, esp given government motive. Under current 1st Amendment law (Tornillo) they are highly questionable
2. The FCC, in particular, should decline to commence a formal rulemaking its rule, if intended to have the "force of law" would almost certainly be ultra vires. The evidence that Congress has delegated rulemaking authority for Sec. 230 is extremely thin
It relies on the existence of ambiguity in the phrase "good faith;" yet given that this is not a statute enforced, or even administered by the FCC, it does not "appear[] that Congress delegated authority to the agency generally to make rules carrying the force of law" under Mead
Assuming the rule were enacted, it would seem entitled to Skidmore deference at best; i.e., as advice re: how a court ought interpret §230(c)(a)(A). But in reality it would be immediately challenged, wasting FCC time & effort defending an ultra vires, unconstitutional rule
These agencies were made independent for a reason: it is a part of the separation of powers that keeps some powers away from the President. As with the Fed. Reserve, the President can recommend and suggest ideas, but the agencies need make up their own minds for their own sakes
