Source: United States Attorneys General
Remarks as prepared for delivery, “The Conservative Roots of America First Antitrust Enforcement”
Good afternoon. Thank you so much for having me. It is an honor to be here at Notre Dame to give my first formal address as Assistant Attorney General for the Antitrust Division. I’ve had many offers to speak since I began my tenure at the Department of Justice, but it seemed appropriate that I present the conservative case for vigorous antitrust enforcement here at Notre Dame Law School. Notre Dame has a storied role in the development of American conservatism’s first principles. I hold those principles dear and, as I will discuss today, our enforcement of the antitrust laws will reflect those principles. Indeed, we seek to bring these shared principles to our work every day: they include American patriotism; textualism and adherence to precedent; and a firm commitment to law enforcement.
I also wanted to deliver an address here in Indiana because the state’s economic history underscores the importance of those conservative first principles to the work I’m now honored to lead at the Antitrust Division. Indiana also played a role in molding the young President Benjamin Harrison into the man he would become. Although many know President Harrison as the U.S. President with the most impressive beard in American history, he was also the President who signed the Sherman Act of 1890 into law.
But more on that in a minute. Let’s begin with some words of thanks.
First, I am deeply grateful to President Trump for entrusting me with the responsibility to lead the Antitrust Division. When he nominated me, President Trump assailed the use of “market power to crack down on the rights of so many Americans.” I am so honored to have the chance to defend the American people’s rights at this critical juncture in our history.
I am similarly grateful to the 78 Senators, from both sides of the aisle, who voted to confirm me in an incredible show of broad bipartisan support for vigorous antitrust enforcement.
And I am grateful to Attorney General Pam Bondi, Deputy Attorney General Todd Blanche, and all the leadership of the Department for their support and for being so welcoming and for being such strong supporters of the Antitrust Division. And, of course, I’m grateful for the team of Deputies, including my Principal Deputy Roger Alford who is here today, for joining me in this endeavor.
My earnest thanks also go to the men and women of the Antitrust Division. My first two months in the building have confirmed that the Antitrust Division employs some of the very best of the very best. Our cases consistently pit a small army of Davids against the Goliaths of Big Law defending Big Business. Yet, as we showed in the Google Ad Tech case, our teams more often than not win the battle on behalf of the American people.
The stakes of that fight are so high. The American people are once again facing a generation of economic and industrial change. We are adapting trade policies to put America First and undertaking deregulation that will unleash innovation in AI and other technologies3 and reshape our economy.
But we face a choice in who will order this realignment and how. Will the American people shape tomorrow’s economy, or will others decide what gets made, where it is made, and who makes it? Will our laws be written by Congress and enforced by politically accountable appointees in the Trump Administration, or by technocrats and lobbyists elsewhere?
Indiana has seen firsthand the consequences of getting these choices wrong for millions of Americans. If recent decades have shown us anything, it is that we need an economy that works for the American people, not the other way around. We also need public policies that afford our fellow countrymen and women the dignity they deserve as American citizens. Of course, antitrust is not a cure-all, but it can surely play an important role in building a more resilient economy going forward.
To better understand what this future might look like we first need to look to the past. As I like to say, the past is prologue. We all know the story of the decline in manufacturing in this state. Indiana was at the heart of the United States’ thriving manufacturing industry for much of the 20th century.
But then in the 1960s and ’70s the factories started shutting down. The Studebaker factory closed here in South Bend in 1963, and other Indiana cities experienced similar population declines as manufacturing moved overseas. It took decades for cities such as South Bend to recover, and some have still not recovered.
Of course, change is inevitable in a dynamic and innovative economy. Economists call this creative destruction and shrug it off as merely market forces at play. But neoliberal public policy also played a role in enabling this creative destruction, and not always for the better. Policymakers in Washington, D.C. voted for free trade agreements that shipped jobs overseas; they opened up our southern border to mass migration; and they underenforced our century-old antitrust laws for several decades. In D.C., these neoliberal policies are collectively referred to as the “Washington Consensus,” and they were the foundation of our economic policy for several decades. They were born out of the optimism that followed the end of the Cold War, sometimes referred to as “the end of history.” They promoted globalization and the financialization of the U.S. economy, and they initially spurred economic growth and prosperity. But that growth left many Americans behind, which brings us to today.
Some say that free trade and open borders result in a larger pie. But it begs the question as to the size of the slice that each community in our society received. At the same time that global labor arbitrage traded American jobs for cheap manufacturing abroad, growing profit margins diverted the economic gains for many goods from American consumers and workers to our coastal elites. Too many communities hollowed out here in Indiana and across the nation. This hollowing out in turn created the conditions for a weakened middle class, fractured families, and in some cases deaths of despair. What was good for a few powerful global corporations, it turned out, was often bad for the dynamic businesses and innovators that made us the greatest nation on earth. It was also bad for the communities in which those businesses once thrived.
Treasury Secretary Scott Bessent recently said something incredibly important about all this. “Access to cheap goods,” he said, “is not the essence of the American dream.” The American Dream “is not ‘let them eat flat screens.’” Instead, he said, and I agree with this, that “The American dream is rooted in the concept that any citizen can achieve prosperity, upward mobility, and economic security.”
Antitrust law enforcement plays an indispensable role in achieving the American Dream because competitive markets enable individuals to achieve prosperity, upward mobility, and economic security. That’s the premise of free market capitalism. In free markets, the American people shape the economy toward their own flourishing by starting and growing their own business, and through their choices in markets as buyers and sellers. Competitive markets enable the American people to build the lives they want, not just as consumers and producers, but as citizens.
That’s the main thing I want you to take away from my remarks today. People ask me what my agenda will be. I get asked this question every week—how does antitrust fit in with the realignment underway in the Republican Party?
I tell them it’s America First Antitrust.
America First Antitrust empowers America’s forgotten men and women to shape their own economic destinies in the free market. We will stand for America’s forgotten consumers. We will stand for America’s forgotten workers. And we will stand for the small businesses and innovators, from Little Tech, to manufacturing, to family farms, that were forgotten by our economic policies for too long.
How will we accomplish this and what are our guiding principles? I submit we need only look to the past and to our conservative roots to find these principles. America First Antitrust roots are grounded in the Sherman Antitrust Act, but they in fact date back to our nation’s founding. Let us not forget that the Boston Tea Party was a protest not only against the British government’s taxation without representation, but also against the monopoly granted to the British East India Company.
The Granger Movement at the end of the 19th century planted the early seeds for antitrust enforcement. It was born and raised by conservative hillbillies in the heartland in defense of their fundamental values. Finally, America First Antitrust continues the legacy of the Ohio Republican Senator John Sherman, the namesake of the Sherman Act, a true economic populist who never went to college, was a self-taught engineer, and became a lawyer under the apprenticeship of his brother.
With the remainder of my time today, I’d like to talk about the conservative values that underpin America First Antitrust. This speech is not intended to be an LLM thesis, so I’ll address three that matter most immediately to the work of the Antitrust Division:
- First, the protection of individual liberty from both government and corporate tyranny;
- Second, a healthy respect for textualism, originalism, and precedent grounded in a commitment to robust and fair law enforcement; and
- Third, a healthy fear of regulation that saps economic opportunity by stifling rather than promoting competition.
Let me address each principle in turn.
I have to begin with the value that defines both conservatism and America—freedom. We are a nation born from opposition to tyranny in defense of individual liberty. As a new American, I cherish the freedom that comes from being an American citizen. As I testified at my Senate confirmation hearing earlier this year, “In our Constitutional Republic, American citizens can speak their minds, earn a living, and invent new technologies free from unwarranted interference. These freedoms are not guaranteed in so many countries around the world, so they must be cherished and defended by us all.”
How does this bedrock American value translate into antitrust?
Antitrust respects the moral agency of individuals by protecting their individual liberty from the tyranny of monopoly.
Here at Notre Dame, the principle of individual moral agency is second nature. And though few were Catholic themselves, the Founders believed philosopher Thomas Aquinas when he argued that humans are imago dei—beings made in the image of God whose exercise of individual moral agency defines us. We realize our goodness and define our own flourishing through our freedom of choice. And so the Founders penned the Declaration of Independence, reaffirming that it is “self-evident” that humans are “endowed by their Creator” with the “Rights” to “Life, Liberty, and the pursuit of Happiness.”
With that, they threw off the tyranny of King George. In so doing, they rejected his grants of monopolies in the colonies as inconsistent with their natural rights. That same year – 1776 – the Scottish philosopher Adam Smith published his seminal book on economics The Wealth of Nations in which he wrote “People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices.”
Ill-gotten monopolies inherently restrain human liberty by depriving individuals of choices as both consumers and producers. That is why popular opposition to the East India Company monopoly led directly to the Boston Tea Party and played an important motivating role in the Founding.
Of course, monopolies at that point in history required the grant of a king, protected by his law. With the success of the Revolution, they largely disappeared from American life for a time. As a result, innovation flourished over the ensuing century, and many new inventions—from the cotton gin to the lightbulb and telephone—launched technological revolutions that improved the lives of all Americans.
But the 19th century also saw the emergence of a new kind of monopoly—a private empire of oil, railroad, and agricultural robber barons.
These private monopolies threatened liberty just as King George once had. Although the identity of the tyrant changed, the threat posed by monopoly to the American people’s endowed natural rights to liberty had not.
The Grangers were among the first to point this out. In the 1860s, midwestern farmers—known then as grangers—began to unite against railroad and grain elevator monopolies that deprived farmers of fair, competitive returns for their crops.
In 1873, the Grangers echoed our founding principles in their “Farmer’s Declaration of Independence.” “The history of the present railway monopoly,” the Grangers declared, “is a history of repeated injuries and oppressions, all having in direct object the establishment of an absolute tyranny over the people of these states unequalled in any monarchy of the old world….” And so they called for government action to constrain private tyranny. This was the perspective that, in 1890, drove an Ohio Republican from the foothills of the Appalachians to draft the nation’s first federal antitrust law constraining private monopolization. Senator Sherman saw his bill as an extension of the Founders’ rejection of the tyranny of monopoly in defense of liberty. “If we will not endure a King as a political power,” Sherman said, “we should not endure a King over the production, transportation, and sale of the necessaries of life.”
To ensure care and precision in using government power against private monopolies, the Sherman Act preserves liberty by promoting economic competition that benefits consumers, workers, inventors, and other trading partners in the free markets.
We are now in the midst of another fundamental change in the nature of monopoly. While the Grangers and Senator Sherman saw the first emergence of privately organized monopolies, we are experiencing the emergence of new durable forms of monopoly power altogether, the likes of which the Grangers and Senator Sherman could not even begin to fathom. These monopolies are driving a Republican realignment away from big business and—under President Trump’s leadership—toward the working class that is reconnecting the party with its roots, recognizing antitrust as a critical tool in protecting individual liberty.
In Senator Sherman’s day, a monopoly could control prices and exclude competition. Today’s online platforms can do so much more. They control not just the prices of their services, but the flow of our nation’s commerce and communication. These platforms play a critical role in our digital public square. They are key not only to the ordinary citizen’s free expression, but also to how elections are won or lost, and how our news is disseminated or not.
This point is being made again and again by members of the new right who are driving the realignment in antitrust policy. Sohrab Ahmari points out that just as conservatives fear Tyranny.gov, they should fear Tyranny.com. Oren Cass underscores how “[c]onservativism is hugely skeptical of power.” Senate Antitrust Subcommittee Chair Mike Lee has explained that “concentrated economic power can be just as dangerous as concentrated political power,” and other influential Senators like Josh Hawley and Chuck Grassley similarly support robust antitrust enforcement aimed at tackling unchecked market power. Vice President Vance has been similarly outspoken—he has decried the “weird idea that something can’t be tyrannical if it comes through the operation of a free market” amidst an environment where companies “control the flow of information” in our society.
I echoed this growing sentiment on the right at my confirmation hearing earlier this year when I testified that “we have grown to appreciate that personal liberty and economic liberty are closely connected; that in many ways they are two sides of the same coin. And Americans have also come to see that economic liberty often hinges on competitive markets.”
So that’s the first principle of America First Antitrust—antitrust enforcement serves the deep-rooted conservative goal of protecting individual liberty from the tyranny of coercive monopoly power. And it serves those goals where it matters most, to protect our liberty online and to ensure that we protect Americans on pocketbook issues such as housing, healthcare, groceries, transportation, insurance, entertainment, and similar markets that directly impact their lives.
Antitrust law enforcement should adhere to the rule of law and respect binding precedent and the original meaning of the statutory text.
The next core conservative value underpinning our antitrust enforcement begins with the important acknowledgement that government itself can be a coercive force that threatens our liberty. This is the so-called Tyranny.gov I just talked about. Conservatives have long been skeptical of government regulation that deprives businesses of their economic freedom and makes our economy less dynamic and prosperous. We must respect originalism and the rule of law and ensure that our enforcement derives from the will of the democratically elected Congress as interpreted by the courts.
A truly conservative approach to antitrust law starts with first principles and text. This means that antitrust agencies should enforce the laws passed by Congress, not the laws they wish Congress had passed. Perhaps most importantly, antitrust in the United States is law enforcement. It is not regulation. Congress enacted the antitrust laws as a legal regime, declined to provide any authority to regulate the details of the Sherman or Clayton Acts, and instead gave the Attorney General the duty to pursue cases before the courts as she does any other action. To recognize federal antitrust law as law enforcement in the American tradition requires a strong commitment to our Constitutional separation of powers, including Executive enforcement prerogative, statutory meaning, and judicial precedent. A faithful humility to law’s limits is the cornerstone of much conservative legal theory. If we are true to our principles, antitrust cannot be an exception.
In the play A Man for All Seasons, Saint Thomas More discusses an England “planted thick” with the common law and says he would “give the Devil benefit of law” before accepting the lawless reality of a society without them.
The English common law tradition of Saint Thomas More has more to do with federal antitrust enforcement than many realize. Senator Sherman designed the Sherman Act to incorporate a general body of common law in the American states and England on restraints of trade and monopoly. That is why the Act used specific terms of art from the common law, including “restraint of trade” and “monopolize,” whose original public meaning must be understood with respect to the common law that they emerged from. In so doing, the Sherman Act incorporated prohibitions on price-fixing and concerns with restraints of trade harming both workers and end consumers, among many other foundational principles of the common law. The antitrust laws must be interpreted in light of their purpose and context to codify the common law and state antitrust laws.
Respecting the rule of law critically requires giving meaning to the statutory text and applying the binding precedents interpreting it—both old and new. Innovations in economic theory and practice may shape more recent law, but they do not render older precedent a dead letter. That is the Supreme Court’s prerogative.
As we move forward with merger enforcement, there will be important debates about the weight we should place on older versus newer precedent as we make enforcement decisions. Those are important debates to have, and I have an open mind. But at the end of those discussions, our merger enforcement will apply our prosecutorial discretion based on the best interpretations of the laws on the books, and analysis of economic facts and data, respecting the original public meaning of the statutory text and the binding nature of Supreme Court and other relevant precedent. This is a deeply conservative position and there is nothing radical about it. To the contrary, what is radical is the notion that we should as antitrust enforcers ignore the text of the law and divorce ourselves from binding precedent, old and new alike.
Respecting the statutory text also helps us defend ordinary Americans who need competition for their work to raise wages and improve working conditions. When Congress prohibited restraints of trade, the term was understood to include restraints on working a trade, as Justice Story explained in his commentaries on the common law. Or as Justice Kavanaugh recently said in Alston, “price-fixing labor is price-fixing labor.”
Our recent Las Vegas nursing case is a great example. A jury convicted a Nevada man of a three-year conspiracy to fix the wages of home healthcare nurses by capping their wages. Hundreds of hard working nurses were affected, and they deserved better. Nursing work is not only important and difficult, but it is a backbone of our middle class and our communities. I am so proud of our team for standing up for those nurses—that is what America First Antitrust is all about.
We will also stand up for workers when dominant firms impose restraints of trade, whether directly on workers or on the businesses who employ workers for them. Because the antitrust laws protect labor market competition, any conduct that harms competition for workers can violate not only the spirit but the letter of the antitrust laws.
Antitrust law enforcement should support deregulation by enabling free market competition that prevents the need for government regulation of consolidated power.
The last conservative value I’d like to talk about today is a preference for litigation over regulation. Conservatives abhor anticompetitive government regulations that unnecessarily sap the free markets of dynamism. Aggressive antitrust enforcement supports a competitive process that enables markets to regulate themselves, providing a bulwark against market power that often leads to regulatory intervention.
In recent decades, we have seen markets tilt toward regulation as they became more concentrated. The poster child here is the regulatory intervention that followed the 2008 financial collapse. You all were mostly kids when the 2008 financial collapse wreaked havoc on the economy, but those of us living in D.C. saw financial institutions that were considered “too big to fail” rapidly succumb to new regulation in the wake of the collapse.
For many, an important question that arose was less about the merits or demerits of the regulations that followed in the wake of 2008, and more about how these financial institutions became “too big to fail” in the first place. Relatedly, many questioned whether these regulations could have been avoided had these markets not become so highly concentrated. Finally, they questioned the role antitrust played in allowing this state of affairs to exist.
This view was at the heart of the enforcement philosophy of one of my most famous predecessors as AAG, Robert Jackson who earned public acclaim as the lead Nuremberg prosecutor after World War II and as a Supreme Court associate justice. In a 1937 speech, then-AAG Jackson noted that “[t]he antitrust laws represent an effort to avoid detailed government regulation of business by keeping competition in control of prices.” Through the antitrust laws, he said, “[i]t was hoped” that the government could “confine its responsibility to seeing that a true competitive economy functions.” As Robert Jackson noted then, enforcement of the antitrust laws “is the lowest degree of government control that business can expect.” This is a limited role I am happy to take on and defend today.
As I have analogized, antitrust is a scalpel, and regulation is a sledgehammer. Free markets often fail, and one cannot wish away monopolies and cartels with false economic theories of self-correction. The scalpel is necessary to make targeted, incisive cuts to remove the cancer of collusion and monopoly abuse. That is America First conservatives’ preferred approach to cure market ills. It imposes government obligations only on parties that violate the law, and only for the limited time necessary to restore competition. In contrast, ex ante regulations cover all parties in an industry for time immemorial, permanently distorting the free market rather than merely curing diseases that were destroying the market.
Worse still, a system of anti-competitive regulation can be co-opted by monopolies and their lobbyists, such that the state’s power actually amplifies, rather than diminishes, corporate power, and leads to the proliferation of government regulations that serve corporate interests rather than the people and drown out new innovations. Scholars like George Stigler have explored regulatory capture and how an industry can “use the state for its purposes,” seeking regulations that operate primarily for the industry’s benefit, for example to control entry or insulate prices. Corporate lobbyists using their power to undermine free markets is ubiquitous in our system, and small but powerful groups can dominate regulatory processes at the expense of the diffuse interests of individual citizens. The alliance of Big Business and Big Government must be broken.
To combat against such laws and regulations that stifle rather than promote competition, we have launched the Anticompetitive Regulations Task Force. Consistent with the Trump Administration’s deregulatory efforts, the Antitrust Division’s Task Force will seek to identify and eliminate laws and regulations that undermine the operation of the free market and harm consumers, workers, and businesses. We look forward to working with the FTC and with partner agencies throughout the government on these efforts.
Let me finish where I started, with an appreciation for the economic conditions here in the Midwest and a healthy dose of humility at the challenges we face re-centering the American people in the functioning of our economy. America First Antitrust cares deeply about the average American in the heartland, and our efforts will focus on those markets that most directly affect their lives. We are here to serve all Americans and wish to move away from the deeply technocratic and elitist mindset that has imbued antitrust law and enforcement for several decades.
I humbly submit that if a farmer in Indiana or Iowa cannot make sense of our work, the fault lies with us, not with the farmer. I may not be invited to cocktail parties in Georgetown or speaking engagements at Stanford or Cornell Law School following my remarks here today, but I will gladly trade this for coffee with Senator Grassley at Cracker Barrel or his own beloved Dairy Queen whenever he can fit me in his schedule.
We will not restore the vitality to our long-forgotten communities overnight. It will take complementary work across many domains—from trade to antitrust to deregulatory policy and so many others.
But with President Trump’s clear commitment to fight in all those arenas for this country’s forgotten people, and with deep-rooted conservative principles to guide us, I believe we can build a truly great future for our children.
I look forward to that work.
Thank you.
MIL Security OSI –