Trump’s Trustbusters: Strong Antitrust Policy in the Trump Administration
By Wyatt BoneNew technological innovations are reshaping the corporate world. These advances are not possible without competition and the incentive towards developing a new product to prevail over competitors. However, as with any field, different companies attempt to eradicate competition through unethical means. Typically, more liberal administrations have more stringent antitrust enforcement, whereas conservative or centrist administrations adopt a more laissez-faire approach to competition. However, there is a fascinating shift in this dynamic occurring in the second Trump administration. The top antitrust officials have delivered strong antitrust enforcement in their first few months in office with legal methods not used by predecessors, all while justifying their approach with conservative legal philosophy. While this is a new direction for conservative administrations, President Trump’s close relationship with corporate leaders potentially complicates antitrust governance.
The second Trump administration has a different take on antitrust law than the first Trump administration, which saw the overturning of the Paramount Decree that banned movie studios from owning theatres, which effectively prevented vertical entertainment monopolies [1]. In a speech at Notre Dame Law School, Gail Slater, Assistant Attorney General for the Antitrust Division, outlined ‘America First Antitrust Enforcement’. This philosophy directly ties strong antitrust enforcement to the American Dream of upward mobility. For Slater and her allies, economic and political liberty are closely related; thus, strong antitrust policy aligns with conservative values of individual freedom and distrust of power. The link is more relevant today with the expansion of monopolies and oligopolies into fields like media and technology that profoundly affect American lives and society.
America First Antitrust incorporates several novel concepts into antitrust enforcement as well. To begin with, Slater emphasizes an originalist approach to the laws that do not limit economic freedom through government overreach. Expanding on that, Slater signals a shift from regulatory to legal enforcement. Instead of imposing an overall regulatory code, the Antitrust Division will go after those who violate the law, but only to restore a free market. In fact, the DOJ and the FTC have formed the Anticompetitive Regulations Task Force to eliminate burdensome regulations hindering competition. This is an unprecedented shift in antitrust enforcement, making it more in line with other divisions of the DOJ. Slater promises the Antitrust Division will also target labor monopolies that price-fix labor or trap workers in non-compete agreements [2].
The actions of the new Antitrust division align with these objectives. In U.S. v. Donald Clark Garner II and Clark & Garner, LLC, a recent antitrust case, the guilty plea involved the defendants paying steep fines and back taxes for their anti-competitive actions, rather than dividing the company or using another method [3]. This indicates the new legal enforcement of this administration. The Trump administration has used other techniques to enforce their antitrust policy, such as upholding new Hart-Scott-Rodino (HSR) rules for merger filings that require more granular information [4] to ensure economic freedom for both the consumer and the companies, or providing remedies to alleviate anti-competitive concerns. They also stated consent decrees between the government and defendants in antitrust cases will change to make them more flexible and cover antitrust issues, rather than through regulatory means [5]. This is indicative of the Trump administration’s broad strategy of strongly utilizing executive power and emphasizing dealmaking.
This antitrust policy extends to Big Tech cases as well. The Trump administration has continued antitrust lawsuits against Apple, Google, and Meta started by the Biden administration, and won a lawsuit over Google’s monopolization of its search engine and use of illegal methods to corner the advertisement markets [5]. This allows for greater competition in tech and a commitment to a free market of ideas. In addition, the administration has increased scrutiny of data markets because the high amounts of data volume shared heightens risks of collusion or information sharing [6]. These efforts relate to supporting further AI innovations by encouraging competition [7].
This revolutionary approach to antitrust policy changes how corporations approach mergers and acquisitions as well as the traditional business-friendly approach of the Republican Party. This is part of the greater transformation of the party into a working class, populist one. However, the efforts of the Antitrust Division could be potentially complicated by the close relationship between the administration and CEOs of major corporations. Trump’s Cabinet contains several former CEOs, and the President himself frequently meets and consults with CEOs and other corporate leaders, and the sometimes mercurial nature of the President has the potential to complicate how effectively the Antitrust Division can deliver on its goals.
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