After numerous court defeats and unproductive legislative efforts, it appears that President Biden’s antitrust agenda has stalled. Conservatives, though, must not be lulled into complacency.
Biden officials are not backing down. The head of the Justice Department’s Antitrust Division, Assistant Attorney General Jonathan Kanter, said as much at a Federalist Society lunch in December.
Kanter pushed back on the idea that the Biden Administration’s antitrust push was floundering. Despite the high-profile losses, he said, private companies scuttled four major mergers as soon as the Justice Department filed complaints. The deterrent effect is even stronger. Kanter believes that some firms have not even attempted mergers for fear of antitrust lawsuits.
Don’t like it? “Too bad” is the Assistant Attorney General’s attitude. There’s a new sheriff in town, and he plans to enforce the statutes Congress wrote, or at least how he sees them as written.
The Clayton Act tasks antitrust agencies with protecting “competition,” and the Sherman Act prohibits agreements “in restraint of trade” and monopolization. Robert Bork’s famous distinction between procompetitive and anticompetitive conduct—the consumer welfare standard—is nowhere to be found in the actual text of the statutes, Kanter pointed out. If Congress wants the standard to guide antitrust enforcement, he says, it can update the antitrust laws.
Looking at the federal code, Kanter has a point.
Relatively concise for federal statutes, the antitrust laws seem to bestow broad authority upon government enforcers. The brief text of the statutes lends itself to a wide net of covered activity. This means that enforcers can seek to bend and manipulate the law so courts expand their authorities.
So far, courts have not entertained more vigorous antitrust enforcement. Jurists have in recent decades preferred hard lines to delineate between competitive and anticompetitive conduct.
But President Biden, committed to robust antitrust enforcement, is stacking lower courts with progressive judges. Biden “outpaces” prior administrations with the number of judges he is appointing: 97 so far. Presidents Trump and Obama appointed 85 and 62, respectively, by the same point in their presidencies.
And the tide could be shifting further in Biden’s favor. In 2019, Judge Lucy Koh for the U.S. District Court for the Northern District of California ruled that Qualcomm’s licensing practices violated antitrust law. In a departure from prior antitrust doctrine, she ordered Qualcomm to license its technology to competitors.
Fortunately, the Ninth Circuit overturned Judge Koh’s ruling after an outcry from several federal departments, including the Antitrust Division and the Department of Defense.
But an overturned ruling did not hamper Judge Koh’s career. President Biden promoted her to serve on the Ninth Circuit, the same court that overturned her prior antitrust decision.
With so many progressives rising through the judiciary, how can conservatives fight efforts to undermine the consumer welfare standard, one of the conservative legal movement’s most important victories?
First, congressional conservatives should withhold their support for progressive efforts to bestow enhanced powers on antitrust enforcers. In their anger at technology companies, some conservatives colluded with progressives to support new antitrust laws like the American Innovation and Choice Online Act (AICOA).
AICOA would have set arbitrary limits on online businesses, punishing some of America’s most successful entrepreneurs. Thankfully, the bill stalled toward the end of the last congressional session. But the tech sector remains in President Biden’s crosshairs.
Conservatives should continue to oppose this bill and others like it. And House Republicans are already moving away from this position. The House Judiciary Committee announced in late January that free market champion Rep. Thomas Massie would run the antitrust subcommittee. This is a welcome step toward breaking the antitrust fever.
Second, Congress should do what Assistant Attorney General Kanter suggests: codify the consumer welfare standard. Instead of playing defense, conservatives should take the initiative and etch the pro-growth standard in legislative stone and dare Democrats to oppose it. This will deter frivolous lawsuits and make it harder for unelected government bureaucrats to punish successful businesses.
A growing number of left-wing judges could unshackle antitrust enforcers. These agencies would possess suffocating power over the American economy, and U.S. businesses would suffer the consequences of bureaucratic pressure.
Congressional Republicans need to take a stand, resist progressive efforts to expand antitrust enforcement, and enshrine conservative free market principles in antitrust law.
