Trumpian Populism and the Changing Intellectual Landscape in Antitrust: Century-Old Resonances, The New Right and Possible end of an Era.

Authors

Jonathan B. Baker, American University Washington College of LawFollow

Journal

Antitrust Law Journal

Volume

87

Issue

283

Abstract

Three sides predominated in the U.S. antitrust policy debate during the Biden administration: neo-Brandeisians (or antimonopolists), centrist reformers (or post-Chicagoans), and conservatives (or Chicagoans). At that time, Trumpian populists did not comfortably fit with any of these groups and were at best secondary participants in policy discussions.

Nine months after the start of the second Trump administration, the intellectual landscape was different. Trumpian populism has now taken center stage at the antitrust enforcement agencies through two senior appointments-- Abigail (Gail) Slater as Assistant Attorney General for Antitrust in the Department of Justice (DOJ) and Mark Meador as a Federal Trade Commission (FTC) Commissioner—and through the elevation of Andrew Ferguson to FTC Chairman. Although it is too early for these officials to have developed a substantial enforcement record in their new positions and premature to reach confident conclusions about how the antitrust agencies will act during the second Trump administration, it is not too early to discuss the intellectual framework that shapes how the three approach antitrust enforcement.

Slater and Meador have facilitated doing so through their initial speeches. Each speech provides an extensive guide to the author's thinking, describes its historical roots, and identifies the intellectual currents that have influenced it. Both enforcers frame their views as conservative: Slater asserts that her “America First” enforcement approach has ““conservative roots,” and Meador describes himself as an antitrust ““conservative.”

Slater and Meador's speeches set forth a common and distinctive policy orientation, albeit with different emphases, which I will treat as embodying a Trumpian populist approach to antitrust. Although Ferguson has not outlined his intellectual framework, I will consider his post-2024 election views to also reflect a Trumpian populist approach to antitrust. Trumpian populism differs markedly from the worldview of the Chicagoans who have been the primary conservative voices in antitrust policymaking since the Reagan administration.

Slater and Meador see antitrust law as flowing from the protection of individual liberty. In their worldview, liberty is a basic moral value or natural right that enables people to build the lives they want. Yet individual liberty is threatened by tyranny--a term used in the Declaration of Independence to summarize a long list of King George's actions that denied the natural rights of the people, subverted the public good, and undermined self-government.

Slater and Meador apply the term “tyranny” to more than the oppressive and arbitrary exercise of governmental power for the private advantage of the powerful. They extend it to what Slater refers to as “corporate tyranny” and what Meador calls “unchecked economic power.” Meador explains that “big is bad”--not just when referring to “the size of the government or political power” but also when applied to “private businesses or economic power.” Hence, according to Slater, the second Trump administration antitrust enforcers stand for forgotten consumers, workers, small businesses, and innovators.

Slater and Meador's objections to the power of large corporations are not just economic; they are fundamentally moral. The two enforcers see antitrust as concerned at bottom with the protection of liberty, which both regard as a moral issue. Slater explains that concentrated private economic power threatens liberty just as concentrated public power does--the threat comes from “both government and corporate tyranny.” Hence, Meador observes, both need to be constrained by legal rules.

Slater sees this approach as conservative because she understands antitrust policy as vindicating “the American people's endowed natural rights to liberty.” Doing so, according to Meador, promotes the “political, religious, and cultural project in the West of pursuing the just ordering of society that best facilities human flourishing.” Ferguson has similarly described the antitrust laws as interdicting threats to human flourishing from the abuse of private economic power and termed his antitrust approach conservative, though he has not sought to demonstrate that his perspective has conservative intellectual roots.

This essay locates Slater, Ferguson, and Meador's distinctive new worldview in the contemporary intellectual landscape of antitrust policy. While the practical consequences of their outlook for antitrust enforcement cannot confidently be determined until the new agency leadership develop a substantial enforcement record and their actions are tested in court, it is evident that the Trumpian populist perspective supports antitrust enforcement when enforcement targets and settlement terms reflect the policy priorities of the Trump administration more generally. Enforcement policy shifts might turn out to be of a scope comparable to what has been observed when the party control of the White House changed in the past. But the worldview of the enforcement leadership could also support more substantial antitrust policy adjustments, in line with the way the second Trump administration has behaved in economic regulatory arenas outside antitrust. Hence, three dissimilar but not mutually exclusive scenarios for the evolution of federal enforcement seemed plausible as the new administration got underway: policy continuity with a Trumpian populist spin, retrenchment, and direct political influence to advance the financial or political interests of the President and his supporters.

By examining the intellectual frameworks underlying what Slater, Ferguson, and Meador call conservative antitrust, this essay shows why a range of possible outcomes would be consistent with broader worldviews shaping policy outcomes in the Republican Party. It also explains why those worldviews, if they frame economic regulatory policy across multiple election cycles, could mark an end to the eighty-year era in which regulatory policy was guided by the pursuit of inclusive economic growth.

Ultimately, the administration's antitrust policies and enforcement record will be judged by what the enforcement agencies do, not what senior officials say. Because some of those officials have attempted to explain how their view of antitrust relates to their understanding of conservative ideology, however, and because their rhetoric matters when it influences the behavior of governmental or private actors, it is appropriate to consider whether they have articulated a coherent worldview and how it connects to conservative thought, past and present. This essay does not address the conduct of the second Trump administration outside of antitrust, except insofar as it bears on antitrust enforcement.

Part I examines the way the Trumpian populists fit into the contemporary antitrust policy debate. Part II links Trumpian populism in antitrust with both the “New Right” thinking associated with Trump's MAGA (Make America Great Again) movementand the historical perspective of the Lochner-era Supreme Court. That part of the essay explains why those intellectual frames are consistent with strong antitrust enforcement. It also explains why those frames, at the same time, would also allow for enforcement to be circumscribed to prioritize Trumpian populist social policy goals in response to budgetary pressures on all agencies implementing economic regulatory policies or in response to direct political influence.

Part III discusses the incompatibility of both intellectual frameworks with the central theme of post-World War II domestic economic policy, which transcends the 1980s turn to neoliberalism: the pursuit of inclusive economic growth. It explains why a Trumpian policy worldview, if accepted by Congress and the courts over multiple election cycles, could mark the end to that pursuit. We could instead see a regulatory instability reminiscent of the early 20th century. Even though Slater, Ferguson, and Meador promise vigorous antitrust enforcement, therefore, their worldview does not ensure robust antitrust enforcement over time.

Repository Citation

Jonathan B. Baker, Trumpian Populism and the Changing Intellectual Landscape in Antitrust: Century-Old Resonances, The New Right and Possible end of an Era., 87 87 ANTITRLJ 283 (2025).
Available at: https://digitalcommons.wcl.american.edu/facsch_lawrev/2325