Overview
Background
Reviving a deregulatory agenda with a new antitrust twist, the Trump administration is using Executive Orders along with DOJ and FTC firepower to challenge entrenched regulatory regimes at both the federal and state levels. This "anti-Big Government" effort signals proactive use of federal government power to reshape the boundaries between state authority and national competition policy. It creates opportunities as well as some risks for almost all companies in key regulated industries. In addition to its own asks, almost every company should be watchful of those of its competitors. This makes the May 23 and May 26, 2025 comment due dates important deadlines for companies that want to be heard on either terminating, modifying, or preserving rules that could help or hurt them competitively.
Shortly after taking office, President Trump issued two Executive Orders: EO 14192 in January 2025 directing federal agencies to "alleviate unnecessary regulatory burdens placed on the American people"[1] and EO 14219 in February 2025 requiring agency heads to initiate a process to review all regulations "subject to their sole or joint jurisdiction for consistency with law and Administration Policy." EO 14219 does not specifically cite anticompetitive regulations as a target, but directs the agency heads to identify regulations that "harm the national interest by significantly and unjustifiably impeding technological innovation, infrastructure development, disaster response, inflation reduction, research and development, economic development, energy production, land use, and foreign policy objectives" and "impose undue burdens on small businesses and impede private enterprise and entrepreneurship."[2]
Building on those orders, the DOJ launched the Anticompetitive Regulations Task Force on March 27, 2025 to advocate for the elimination of anticompetitive state and federal laws and regulations that undermine free market competition and harm consumers, workers, and businesses. The Antitrust Division is soliciting comments from the public to identify unnecessary laws and regulations that raise the highest barriers to competition. In particular, the Division seeks information about laws and regulations that make it more difficult for businesses to compete effectively, especially in the housing, transportation, food and agriculture, healthcare, and energy sectors. The deadline for comments is May 26, 2025. The Task Force will review the comments with staff from across the Antitrust Division, along with interagency partners, to identify state and federal laws and regulations that unnecessarily restrict competition and then take action to assist agencies in revising or eliminating those anticompetitive laws and regulations.[3]
Soon after the DOJ Antitrust Division’s announcement of the Task Force, President Trump signed on April 9, 2025 a Presidential Memorandum titled "Directing the Repeal of Unlawful Regulations,"[4] ordering agencies to take additional steps to "immediately repeal" unlawful federal regulations following the identification of those regulations pursuant to EO 14219. The Memorandum instructs the federal agencies that in effectuating such repeals, the agencies should proceed "without notice and comment" pursuant to the statutory "good cause" exception in the Administrative Procedure Act along with a brief statement of the reasons that the exception applies.
Also on April 9, the President issued Executive Order No. 14267 – "Reducing Anti-Competitive Regulatory Barriers"[5] – directing the heads of all executive agencies to provide to the DOJ and FTC a list of all their regulations that impose anticompetitive restraints or distortions. In addition, within 90 days of receiving the lists, the FTC Chairman, in consultation with the Attorney General, the Assistant to the President for Economic Policy, and relevant agency heads, must provide the Office of Management and Budget with a consolidated list of regulations that warrant rescission or modification, along with recommended changes. In what appears to be an overlap with the similar request for comments from the DOJ, the order directed the FTC Chairman to issue a request for information seeking public comment on the identification of anticompetitive regulations. Chairman Ferguson issued the request on April 13 and comments are due on May 23, 2025, three days before similar comments are due to the DOJ.
And again on April 9, President Trump issued an Executive Order titled "Zero-Based Regulatory Budgeting to Unleash American Energy."[6] This order requires ten agencies and subagencies to embed a sunset provision into existing energy regulations. Any rule not affirmatively renewed before its expiration will automatically be rescinded, with all such regulations set to expire no later than September 30, 2026.
As the administration implements this broad and fast-moving deregulatory initiative, it may encounter legal challenges, particularly around the efforts to bypass the Administrative Procedure Act and limits of federal authority versus state regulatory autonomy under the state action doctrine.
Laws Potentially in the Crosshairs of the Task Force
In determining which laws and regulations to prioritize, federal agencies, including the new DOJ Task Force, are set to focus on those with significant economic impact or where barriers to entry are seen as unjustified. As to which regulated areas to focus on, energy, transportation, housing, food and agriculture, and healthcare are specifically named in the Task Force announcement as having a high level of impact on households.
In the energy sector, many states grant utilities a right of first refusal (ROFR) over new transmission projects. The arguments in favor of ROFR laws include speedier construction due to removal of the bidding process and familiarity with the area. Opponents argue that ROFR laws entrench incumbents at the expense of competition and raise energy costs for families.
In the transportation sector, regulations such as California’s ban on the sale of new gas-powered cars after 2035 could come under scrutiny.[7] While framed as an environmentally friendly policy, such laws may be challenged as de facto barriers to market access for certain technologies. Federal enforcers may attack these rules as restraints on competition that outweigh any environmental benefit the regulations are claimed to achieve.
In the agriculture sector, the Sugar Act of 1934[8], a federal law that provides for minimum price levels for sugar, could be targeted.
In healthcare, onerous federal regulations regarding drug approvals and trials are likely targets.
The scope of the initiative is far-reaching. This means that potential targets could even include zoning ordinances that limit the number or type of business permitted in certain areas and occupational licensing laws that impose excessive requirements for hair stylists and nail salons. Federal regulators may argue that these measures do more to protect existing providers than to promote public welfare through competition.
Conclusion
It would be inaccurate to read this initiative as a signal that the Trump administration is the kind of laissez-faire antitrust Republican administration the nation saw in the 1980s. The new administration has shown in many ways its resolve to stop behavior it considers anticompetitive. It has also displayed an interest in enforcing constraints on anticompetitive behavior or market power when they also create the power to control users’ speech. This resolve, too, creates opportunities and risks for many businesses, especially in the media and online platform industries that are in some ways the converse of the risks and opportunities created by the deregulatory initiatives discussed above. There are several tides and crosscurrents competing for preeminence under the surface of the competition policy ocean. Successful navigation of these tides and crosscurrents is now probably more important than ever for many companies.
Companies in regulated industries that have been specifically called out – particularly energy, transportation, housing, food and agriculture, and healthcare – should monitor these developments closely and consider comment submission.
[1] EO 14192, Unleashing Prosperity Through Deregulation, (Jan 31, 2025), available at: https://www.federalregister.gov/documents/2025/02/06/2025-02345/unleashing-prosperity-through-deregulation.
[2] EO 14219, Ensuring Lawful Governance and Implementing the President’s “Department of Government Efficiency” Deregulatory Initiative, (Feb. 25, 2025), available at: https://www.federalregister.gov/documents/2025/02/25/2025-03138/ensuring-lawful-governance-and-implementing-the-presidents-department-of-government-efficiency.
[3] Department of Justice, Press Release, Justice Department Launches Anticompetitive Regulations Task Force, (Mar. 27, 2025), available at: https://www.justice.gov/opa/pr/justice-department-launches-anticompetitive-regulations-task-force.
[4] Presidential Memoranda, Directing the Repeal of Unlawful Regulations, (Apr. 9, 2025), available at: https://www.whitehouse.gov/presidential-actions/2025/04/directing-the-repeal-of-unlawful-regulations/#:~:text=Promoting%20economic%20growth%20and%20American,American%20consumers%20and%20American%20businesses.
[5] Executive Order, Reducing Anti-Competitive Regulatory Barriers, (Apr. 9, 2025), available at: https://www.whitehouse.gov/presidential-actions/2025/04/reducing-anti-competitive-regulatory-barriers/.
[6] Executive Order, Zero-Based Regulatory Budgeting to Unleash American Energy, (Apr. 9, 2025), available at: https://www.whitehouse.gov/presidential-actions/2025/04/zero-based-regulatory-budgeting-to-unleash-american-energy/.
[7] See e.g., Executive Department State of California, Executive Order N-79-20, https://www.gov.ca.gov/wp-content/uploads/2020/09/9.23.20-EO-N-79-20-Climate.pdf.
[8] 48 Stat. 672, 7 U.S.C. § 608(a).
