Red Tape Reduction: DOJ Task Force on Anticompetitive Regulations

As predicted before the inauguration of Trump 2.0, the antitrust enforcers continue to support the pro-worker and anti-tech agenda that has been permeating recent antitrust enforcement throughout the last two administrations changes. The President appointed two competition agency leaders, Chair Ferguson at the Federal Trade Commission and AAG Slater in the Department of Justice Antitrust Division. Both identify with a conservative populism that is based on many of the same policies as Biden’s competition leaders such as 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. EO 14192 stipulates that before an agency can promulgate a new regulation, they must first identify at least ten regulations that need to be repealed. Other agencies have announced similar efforts. The Task Force is also seeking to influence policy through amicus briefs filed in private litigation, and by weighing in on proposed 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. Some have cited these industries as examples of industries that are dominated by large companies. The goal is to reduce regulations to make it easier to compete in these industries for smaller, disruptive businesses (“Little Tech!”). 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. The DOJ and FTC expressed concerns about Certificate of Need laws that are in place in many states. This could be a policy dilemma for Trump 2.0 antitrust enforcers. 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. The FTC’s Economic Liberty Task Force, under the previous Trump administration released a report entitled Options to Enhance the Portability of Occupational Licenses. However, rolling back licensing requirements could push the administration’s policy goals 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

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have a meaningful opportunity to call out barriers to competition that they face and potentially impact competition agencies’ focus.