As we predicted before the inauguration, Trump 2.0 antitrust enforcers have shown continued support for the pro-worker, anti-tech antitrust agenda that has permeated recent antitrust enforcement through the last two administration changes. This time around, President Trump appointed competition agency leaders in Chair Ferguson at the Federal Trade Commission (FTC) and AAG Slater at the Department of Justice Antitrust Division (DOJ) who identify with a brand of conservative populism coalescing around many of the same policies and priorities as Biden-appointed competition leaders like FTC Chair Lina Khan. For example, since the inauguration, antitrust agencies under their leadership have forged on with antitrust cases against Big Tech, backed the Biden-era revisions to the merger and labor guidelines, and doubled down on efforts to use antitrust laws to protect American workers.
The Anticompetitive Regulations Task Force
The DOJ recently announced an Anticompetitive Regulations Task Force “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 move was instigated by President Trump’s Executive Orders 14192 and 14219, which promote deregulation and direct agencies to identify regulations that “impede private enterprise and entrepreneurship.” To that end, the Task Force will partner with federal agencies to help identify regulations that inhibit competition in the industries they monitor. Significantly, EO 14192 requires that for an agency to promulgate new regulation, it must identify at least ten existing regulations to be repealed. Similar efforts have been announced across other agencies.
In addition to advising agencies, the Task Force “Invites Public Input Targeting Red Tape that Hinders Free Market Competition” and is soliciting public comments through May 26 on regulations that interfere with businesses’ ability to compete. This is a powerful prospect for those interested in influencing competition policy, since the administration appears to be looking to do away with as much regulation as possible and has shown it can move quickly.
The Task Force also seeks to influence policy by filing amicus briefs in private litigation and weighing in on proposed state legislation. In a “what’s old is new again” way, much of this work has been done for decades by the DOJ’s Policy and Appellate Sections, and examples of this type of competition advocacy spanning more than a decade can be found in its Comments to Federal Agencies, Comments to States and Other Organizations, and Statements of Interest.
Industries of Interest
The Task Force intends to focus on markets that have the greatest impact on American households, including:
- Housing
- Transportation
- Food and Agriculture
- Healthcare
- Energy
The cited industries of interest are unsurprising, since not only are they currently tightly regulated, but they also represent some of the largest areas of government spending and have been a perennial focus of antitrust investigations, litigation, enforcement, and competition advocacy. Indeed, these industries are held out by some as examples of industries dominated by large players.
The Task Force announcement focuses on the ways red tape regulations hurt small businesses by imposing barriers to entry and inequitably increasing compliance costs. A purported goal is to cut back regulations in order to make it easier for smaller, disruptive companies (“Little Tech!”) to enter these industries and successfully compete. However, the effects of anticompetitive regulations and any regulatory rollbacks will be experienced equally by large and established companies, so the call for identification of areas in need of rollback appears to be open to all.
Potential Impact
While businesses are attempting to navigate the administration’s other swift changes, this Task Force presents an opportunity for some long overdue positive changes, particularly in areas plagued by anticompetitive red tape. For example, in the healthcare industry, the DOJ and FTC have expressed competition concerns relating to Certificate of Need laws in numerous states.
The energy industry could present an interesting policy conundrum for Trump 2.0 antitrust enforcers as the smaller, disruptive market participants the Task Force encourages to speak up are likely non-incumbent alternative and environmentally conscious energy providers. While these issues are likely to be swept into the Task Force’s review, it remains to be seen whether the Trump administration will have an appetite to advocate for these providers’ competitive footing, or instead focus on seeking rollback of ESG-focused regulations.
Similarly, the Task Force’s attention to small businesses means another likely target is occupational licensing. Under the previous Trump administration, the FTC’s Economic Liberty Task Force released a report on Options to Enhance Occupational License Portability, but rolling back licensing requirements altogether could push the administration’s policy goals much further. Here too, regulation repeal would likely face a fair amount of pushback, even from within the industries.
Conclusion
While the fruits of the Task Force’s efforts will likely take a long time to materialize, companies—particularly those in the Housing, Transportation, Food and Agriculture, Healthcare and Energy industries—have a meaningful opportunity to call out barriers to competition that they face and potentially impact competition agencies’ focus.