State lawmakers should rebuild competition law with clear rules to curb corporate power.
Unexpectedly, the Biden and second Trump Administrations have together made the case for fundamental antitrust reform in the United States. During the Biden years, the U.S. Department of Justice and Federal Trade Commission (FTC) revealed antitrust law’s potential to make life better for ordinary Americans. They sought to improve access to essential medicines, lower rents, and empower tens of millions of workers by voiding and banning noncompete clauses. On the other hand, the Trump Administration has shown why returning to the pre-Biden Administration status quo is untenable. Since January 2025, the Justice Department and FTC have exploited elastic legal standards and opaque procedures, which have defined the field for decades, to greenlight mega-mergers and to turn antitrust into a tool for blatant corruption.
Lawmakers should complete the job that the Biden Administration initiated. The past five years have highlighted the importance of qualitative changes to the field. A new antitrust system should feature clear rules against harmful mergers and unfair practices, which would reduce discretion for enforcers and judges, and be far more transparent to the public and businesses.
During its one term, the Biden Administration previewed a very different antitrust enforcement approach. The Justice Department and FTC put the interests of ordinary people first and adopted a more adversarial posture toward powerful corporations and financial interests. For the first time in the long history of the federal antitrust agencies, the Justice Department in 2022 stopped a merger—publishing house Penguin Random House’s proposed acquisition of Simon & Schuster—based on anticipated harm to workers. In 2024, FTC enacted a rule prohibiting noncompete clauses for all workers, although it was subsequently struck down by a Trump-appointed district judge in Texas.
The Justice Department and FTC also prioritized targeting the abusive practices of dominant tech corporations. They initiated, or continued, lawsuits against each of the Big Five—Amazon, Apple, Facebook, Google, and Microsoft. Although relying on traditional antitrust theories, the federal complaints against, in particular, Amazon and Google, challenging its domination of digital advertising, emphasized the adverse effects of abusive practices not just on consumers but also on businesses dependent on or competing against the tech platforms.
Despite the occasional populist rhetoric, the Trump Administration has made a clean break with what the Biden Administration started. Antitrust enforcers have stated that they view corporate consolidations as generally benign and adopted a hands-off approach. Furthermore, the FTC stopped defending the noncompete ban in court on specious legal and policy grounds.
The Justice Department and FTC have also ended cases started by their predecessors. For instance, the Justice Department settled major lawsuits against music promotion, hosting, and ticketing giant Live Nation and against RealPage, the software company accused of enabling large-scale collusion among landlords in cities across the country, on unsatisfactory terms. Pressing on against Live Nation, a coalition of states’ attorneys general secured a decisive win in court in April—and the Justice Department shamelessly attempted to steal their valor.
Some of these settlements reflect not only an ideological shift but also an open embrace of corruption by this Administration. The Justice Department settled the Live Nation suit after a fierce push by corporate lobbyist and Trump ally Mike Davis reportedly resulted in the dismissal of antitrust chief Gail Slater, who purportedly was determined to take the case to trial.
The settlement resulting from Hewlett Packard Enterprise’s proposed merger with Juniper Networks is the clearest manifestation of the influence peddling that defines antitrust today. The Trump Justice Department sued to stop the consolidation in January 2025, but settled the case in June on terms that did not fix the harms alleged in the complaint. In the interim, Davis had reportedly used what UnHerd described as “boozy backroom meetings” to prevent the case from going to trial, despite calling the merger illegal and praising the lawsuit. A group of 13 state attorneys general have challenged the settlement in federal court as procedurally tainted and substantively inadequate.
The Trump Administration’s corruption is made possible by more than 40 years of antitrust policy and practice. Federal antitrust enforcers and corporate allies are merely exploiting the so-called rule of reason, a legal standard that is enormously malleable and interpreted and applied almost entirely out of the public eye. Justice Department and FTC evaluation of mergers is so opaque that veteran antitrust attorney Seth Bloom quipped to ProPublica in 2016 that “there are few government functions outside the CIA that are so secretive as the merger review process.”
What Mike Davis is doing is hardly unprecedented. In 2013, the Obama Administration abruptly settled a court challenge to the American Airlines–US Airways merger following aggressive lobbying by the two airlines and their allies, including then-Chicago Mayor Rahm Emanuel.
Even with a big business-friendly Congress and President, state legislatures can undertake antitrust reform. They should establish simple and straightforward rules of market conduct. Lawmakers should generally prohibit mergers involving firms with, for example, market shares of more than 20 percent or annual revenues greater than $10 billion and outlaw unfair practices such as exclusive dealing and predatory pricing for these firms. Such rules, akin to speed limits on roads, would protect consumers, workers, and suppliers from concentrated corporate power and pressure businesses to grow and succeed through fair treatment of their trading partners, investment, and research and development. These clear prohibitions would enhance the rule of law and limit discretion for enforcers and judges.
Complementing substantive reform with greater transparency, as well as stronger rights of action for private parties and state attorneys general, is critical. Better law can be neutered in application if the Mike Davises can continue to practice their dark arts successfully behind closed doors.
Antitrust was born during an anti-oligarchy moment in the late 19th century. In 1890, Senator John Sherman of Sherman Antitrust Act fame declared that “if we would not submit to an emperor, we should not submit to an autocrat of trade.” With anti-oligarchy in the air again, the states and eventually Congress should rebuild antitrust from the ground up and make the law serve ordinary Americans.
