To Be Continued?: Predicting Antitrust Enforcement in the New Trump Administration | Sheppard Mullin Richter & Hampton LLP

With the U.S. presidential election looming in November, our antitrust and competition law team continues to offer insight into what antitrust enforcement might look like under the next presidential administration. Our recent post examined antitrust enforcement in the Biden administration, which highlighted the results of the Biden administration’s aggressive antitrust policies. The enforcement priorities and agency leadership would be difficult to predict under another potential Trump administration. As guides, we will examine antitrust enforcement in Trump’s first term, his 2024 campaign rhetoric, and the antitrust priorities set forth in the Heritage Foundation’s Presidential Transition Project 2025 (“Project 2025”), assuming former President Trump disassociates himself from Project 2025.

Antitrust in Trump’s First Term

While Republican administrations may be known for more business-friendly antitrust policies, the recent Trump administration has rapidly ramped up antitrust rhetoric and enforcement priorities. The Trump Justice Department has sought to crack down on “Big Tech,” challenging major tech deals and Google’s search monopoly case (which the Justice Department recently won). Trump’s FTC has also challenged deals, raising new theories of harm and filing lawsuits against vertical mergers.

Antitrust rhetoric in the election campaign

While Trump was relatively quiet on antitrust during the campaign, his running mate, J.D. Vance, has been outspoken about aggressive antitrust enforcement. Vance described FTC Chair Lina Khan as “one of the few people in the Biden administration who I think is doing a pretty good job” and credits her for having “a broader understanding of how we think about competition in the marketplace.” On Big Tech enforcement, Vance believes Big Tech is “too big” and should be broken up. Vance seems poised to play a role in antitrust policy under the new administration and continue Trump’s tough scrutiny of Big Tech that he began in his first term.

Project 2025

Much has been made of Project 2025, a set of conservative policy plans that could potentially be implemented by the incoming Trump administration. Project 2025 recognizes the importance of antitrust enforcement to ensure a competitive economy and expresses some progressive ideas about market concentration, stating that “we are witnessing the use of economic power in today’s markets—often market power, perhaps even monopoly power—to undermine democratic institutions and civil society.” Project 2025 partially blames government for increased market concentration, opining that “the very cost of compliance with regulation favors large companies that can more efficiently spread the cost of regulation across a larger revenue base and have the resources to invest in sophisticated government relationships,” and calls on the FTC to consider the role of government in maintaining market concentration.

Project 2025 also discusses ways that antitrust enforcers can support conservative ideals. For example, Project 2025 calls for the FTC to investigate “environmental, social, and governance” (“ESG”) practices that mask anticompetitive behavior and unfair trade practices. The plans also call for more cooperation between the FTC and state attorneys general because, as the policy states, “state attorneys general are far more responsive to their constituents than the FTC.” However, the plans also question whether the FTC should continue to enforce antitrust laws at all.

As the incoming Trump administration looks set to continue to scrutinize big tech companies, companies should be informed of the antitrust and competition positions taken by each presidential candidate as the election approaches.