Overview
Last week, Assistant Attorney General (AAG) of the Department of Justice’s Antitrust Division, Gail Slater, issued her first formal address since her confirmation. AAG Slater's speech, as well as Republican FTC Commissioner Mark Meador’s longer "Antitrust Policy for the Conservative," provide an excellent overview of the conservative principles and ideals that underlie AAG Slater's "America First Antitrust" enforcement policy.
AAG Slater's speech, aptly titled "The Conservative Roots of America First Antitrust Enforcement," began by lauding the Trump administration's trade policies, deregulation efforts, and border/migration policies. A major source of anticompetitive conduct, AAG Slater argued, was "neoliberal public policy" that weakened the middle class, all while its proponents falsely promoted free trade and open border policies as a means of spurring economic growth and prosperity. AAG Slater chastised these policies' promotion of the globalization and financialization of the US economy, which ultimately resulted in trading American jobs for cheap manufacturing abroad, weakening the American middle class. Antitrust, she said, plays an indispensable role in solving decades of damaging neoliberal policies. More specifically, competitive markets enable individuals "to achieve prosperity, upward mobility, and economic security," and to "build the lives they want, not just as consumers and producers, but as citizens."
"America First Antitrust" is rooted in three conservative principles; it's worth comparing these principles to Biden-era doctrine to assess the degree of contrast or continuity.
First Principle: The protection of individual liberty from both government and corporate tyranny.
Now more than ever, AAG Slater argued, antitrust enforcement must be used as a means to "respect the moral agency of individuals by protecting their individual liberty from the tyranny of monopoly." Unlike the monopolies Senator Sherman sought to fight with the passing of the Sherman Act, AAG Slater states that the US is currently confronted with "new durable forms of monopoly," referring to online platforms, can do so much more than control prices and exclude competition, because they "control not just the prices of their services, but the flow of our nation’s commerce and communications." While AAG Slater does not explicitly mention companies she views as "new durable … monopolies," she states that "these platforms play a critical role in our digital public square," seemingly alluding to Big Tech.
Slater said that modern monopolies harm American citizens because "they are key not only to the ordinary citizen's free expression, but also to how elections are won or lost, and how our news is disseminated or not." As a consequence, the America First Antitrust policy promotes vigorous enforcement of monopolies that harm online liberty (likely an ode to content suppression on online platforms) and harm Americans on "pocketbook issues" like housing, healthcare, groceries, transportation, and other markets.
To some degree, however, many of these enforcement priorities parallel Biden-era antitrust enforcement. Reining in Big Tech, for example, was a key pillar of Biden's FTC and DOJ, as manifested in the filing or continuation of enforcement actions and investigations targeting Google, Apple, and Meta. Although AAG Slater's focus on content suppression by tech platforms represents an effect of monopoly power that was not widely recognized as a central tenet of the Biden-era enforcement playbook, the underlying concern – unlawful dominance by Big Tech firms – is consistent. Moreover, former AAG Jonathan Kanter's Judiciary Committee interview included his statement that "[a]nticompetitive harm is not limited to price effects and may include, for example, loss of competition in the marketplace of ideas and interference with the free flow of information that affects political discourse."[1] The similarities between Trump and Biden-era antitrust policies do not end there.
Second Principle: A healthy respect for textualism, originalism, and precedent grounded in a commitment to robust and fair law enforcement.
Under this principle, AAG Slater argued that antitrust law enforcement should adhere to the rule of law and respect binding precedent and the original meaning of the statutory text. This means, she said, that "antitrust agencies should enforce the laws passed by Congress, not the laws they wish Congress had passed."
Ultimately, the America First Antitrust policy aligns with the notion that antitrust laws should be interpreted in light of their purpose and context to codify the common law, both old and new. Drawing from the roots of antitrust, this will mean the targeting of labor market monopolies when dominant firms impose restraints of trade, whether directly on workers or on the businesses that employ them, because antitrust laws "protect labor market competition." New precedent, AAG Slater argued, does not render older precedent "a dead letter," instead proffering that an appropriate balance must be struck. Accordingly, she stated that, with regard to merger enforcement, "there will be important debates about the weight we should place on older versus newer precedent as we make enforcement decisions."
Interestingly, while some conservatives criticize the previous administration for bringing challenges they viewed as pushing novel legal theories to support a policy that generally disfavored mergers and consolidation, the Biden-era 2023 DOJ and FTC Merger Guidelines, relied more heavily on case law precedent from the 1960s and forward. The new administration did not withdraw them, illustrating the parallels between Biden and Trump-era antitrust policy, although AAG Slater's comment about the weight to be placed on older versus new precedent hints at some potential changes.
Third Principle: A healthy fear of regulation that saps economic opportunity by stifling rather than promoting competition.
Finally, AAG Slater emphasized the role of antitrust agencies not as regulators, but as enforcers. She used the 2008 financial collapse to illustrate this point: The firms deemed “too big to fail” ultimately did and rapidly succumbed to new regulation in the wake of economic collapse. Slater said that while free markets often fail, antitrust enforcement rather than regulation presents the solution to avoid such failure. In her view, antitrust regulation acts as a "sledgehammer" that crushes innovation and competition by permanently distorting the free market, seeking to "wish away monopolies and cartels with false economic theories of self-correction." The America First Antitrust Enforcement policy, on the other hand, will use antitrust as a "scalpel"—weaponizing antitrust laws to make "targeted, incisive cuts to remove the cancer of collusion and monopoly abuse." Under this approach, antitrust enforcers will impose government obligations only on parties that violate the law (such as those firms that were "too big to fail" pre-2008) and only for the limited time necessary to restore competition.
AAG Slater's focus on antitrust enforcement versus regulation seems consistent with Kanter’s promotion of the antitrust enforcement versus regulation approach throughout his term at the DOJ. In one instance, Kanter said, "[a]s enforcers we don’t want to get overzealous to fix every problem with a regulatory solution. We try to make sure that the market is competitive. In gnarly conduct cases, how you remedy the violation can get tricky and overly regulatory…A remedy is only good in the context of enforcement."[2] Similarly, in a 2023 interview Kanter said, "I don’t view us as regulators. We’re law enforcers. We follow the facts and the law wherever it takes us."[3] And in another context, the Biden-era withdrawal of the decades-old "safe harbors" for information sharing between competitors, was justified in part with the agencies' renewed focus on antitrust enforcement as opposed to regulation.
On the other hand, AAG Slater has departed from the prior administration's opposition to merger remedies, noting that she would be a “proponent” of resolving merger challenges with consent decrees because, "if done right," remedies can "remove any anticompetitive harm from a merger."
Summary
A thorough interpretation of AAG Slater's "America First Antitrust Enforcement" policy emphasizes that the "conservative principles" at the root of the policy may actually share some bipartisan support – which is further evidenced by the 78 Senate votes AAG Slater received for her confirmation. While the politics and labeling may vary, the Trump administration’s antitrust enforcement priorities, as described in the recent words of AAG Slater and Commissioner Meador, share notable similarities with Biden-era antitrust policies, particularly in addressing Big Tech power, reliance on precedent, and the preference for enforcement over regulation.
[1] Senate Judiciary Committee, Questions for the Record Jonathan Kanter Nominee to be Assistant Attorney General of the Antitrust Division, at p. 16, q. 3(e) (Oct. 28, 2021).
[2] David Dayen, Q&A: Taking On The Biggest Problems and The Biggest Companies, The American Prospect (Jan. 13, 2025), https://prospect.org/economy/2025-01-13-qa-taking-on-biggest-problems-companies-jonathan-kanter-interview/#:~:text=As%20enforcers%20we%20don't,have%20the%20opportunity%20to%20flourish.
[3] What's Behind the U.S. Government’s New Antitrust Focus, Wall Street Journal (Dec. 13, 2023), https://www.wsj.com/business/governments-new-antitrust-focus-ca48ceae.
