Trump's 'America First Antitrust' Policy Will Put America Last
The Justice Department is pursuing an antitrust policy inspired by Oren Cass and members of the New Right.
Abigail Slater delivered her first public address as assistant attorney general for the Antitrust Division of the Department of Justice on Monday, where she argued for an "America First Antitrust" policy based on patriotism, textualism, and respect for precedent and the rule of law. Speaking at the University of Notre Dame, Slater claimed her antitrust regime will empower "America's forgotten men and women to shape their own economic destinies in the free market." In reality, her populist antitrust agenda will retard American innovation and economic growth.
Slater, who was an economic policy adviser to Vice President J.D. Vance when he was in the Senate, opened her remarks by thanking President Donald Trump, who has "assailed the use of 'market power to crack down on the rights of so many Americans,'" for giving her "the chance to defend the American people's rights at this critical juncture in our history."
Slater explains that the Trump administration is "undertaking deregulation that will unleash innovation in AI and other technologies" but celebrates the DOJ's recent victory in the Google ad tech case, saying, "Our teams more often than not win the battle on behalf of the American people." Embroiling Big Tech firms in expensive antitrust suits stifles innovation by decreasing capital available for R&D and discouraging startup acquisition.
Slater also condemns the "global labor arbitrage" for trading "American jobs for cheap manufacturing abroad" and "growing profit margins [that] diverted the economic gains for many goods from American consumers and workers to our coastal elites." But the facts contradict Slater's story: The percentage of U.S. households making $35,000 or less decreased from 1967 to 2017, while those making $100,000 or more increased, as explained by Mark Perry, senior fellow emeritus at the American Enterprise Institute. She also references the decline of manufacturing since the late 1960s, but nationwide manufacturing output steadily increased from 1970 to 2007, where it has since stabilized.
Slater's skepticism of free markets was most prominently displayed when she explained the principles that will guide her approach to antitrust enforcement at the Justice Department.
To Slater, the first objective for antitrust enforcers should be protecting individual liberty from government and corporate tyranny. While Slater rightly identifies freedom of choice as necessary for flourishing, she wrongly likens today's dominant firms to the government-granted monopolies of the colonial period, such as the British East India Company.
Brian Albrecht, chief economist at the International Center for Law & Economics, says "It is very strange to compare a government-granted monopoly to any of the relevant 'monopolies' people worry about today." Ethan Yang, an adjunct research fellow at the American Institute for Economic Research, agrees, telling Reason, "Many of the so-called dominant firms that are in the antitrust crosshairs today have achieved their positions almost entirely on enterprise." The British East India Company only "maintained its position because it was granted a legal monopoly on all trade occurring in a certain part of the world by royal charter."
Second, she believes antitrust enforcement should respect binding precedent and the original meaning of the statute. Slater says antitrust agencies should only enforce laws actually passed by Congress—not laws they wish Congress had passed. Slater invokes this principle to argue that "antitrust laws protect labor market competition." Antitrust has been used in the context of labor, explains Yang, but "its application is tricky because…it is much more difficult to classify as a market which is necessary to measure competition and the alleged anticompetitive effects of restrictive labor practices." Moreover, Slater's claim that labor antitrust is deeply rooted in common law tradition and Supreme Court precedent is wrong because "most of the labor antitrust has happened in the last 15 years," according to Albrecht.
Slater's third principle is that antitrust litigation can serve as a substitute for regulation. Slater likens the former to a scalpel and the latter to a sledgehammer. Even though Slater rightly recognizes that "anti-competitive regulation can be co-opted by monopolies and their lobbyists" and "sap the free market of dynamism," she does not admit that antitrust's susceptibility to capture and do the same. The empirical record unambiguously shows that "antitrust, at least before the development of the consumer welfare standard, was employed to help competitors and a form of rent seeking," says Albrecht. Yang adds that, while antitrust enforcement may be less susceptible to corporate capture than regulation, it is "highly ideological and partisan because lawsuits can be launched at will by…agency leaders who often take direct orders from the President."
Slater credits New Right intellectuals Oren Cass, founder of American Compass, and Sohrab Ahmari, founder of Compact magazine, for "driving the realignment in antitrust policy." Slater's "wish to move away from [a] deeply technocratic and elitist mindset" confounds her support of the New Right, whose economic program is explicitly technocratic, viewing trade and industrial policy as tools policymakers can and ought to use to remake the economy from on high.
Slater is right that "personal liberty and economic liberty are closely connected." But her activist antitrust ideology will violate liberty, not protect it.