Guest Column: Antitrust federalism

Following the 2024 election, many progressives thought they could work with the Trump administration on antitrust policy. Their optimism stemmed from the many pro-Trump policymakers and advocates, including JD Vance, who supported a more aggressive use of antitrust enforcement than had been rationally advanced by conservative Republicans. This new approach to antitrust policy is reflected in the cases against META (parent company of Facebook and Instagram) and Alphabet (parent company of Google and YouTube) brought by the Federal Trade Commission and Justice Department during Trump's first term. Progressive hopes were soon dashed as Trump's FTC Chair Andrew Ferguson abandoned the 'neo-Brandeisianism' of the Biden years that sought to block even those mergers or acquisitions that would have benefited consumers. Trump's pick to head the Justice Department's antitrust division, Gail Slater, was more favorable to neo-Brandeisianism than her FTC counterpart. According to some reports, Slater clashed with then-Attorney General Pam Bondi over antitrust cases Bondi wanted settled, such as the case against Ticketmaster's parent company, Live Nation. These conflicts led to Slater's resignation in February, followed by a Justice Department settlement with Live Nation. However, Live Nation still lost in court. The majority of the 34 state attorneys general, which included both Democrats and Republicans, who joined the federal government in suing Live Natio, refused to accept the settlement. Instead, they pursued and won the case against Live Nation. States have a long history of enforcing antitrust laws going back to before the passage of the first federal antitrust laws. As the Live Nation case demonstrates, the Trump Administration's abandonment of neo-Brandeisianism is causing a revival of interests in state-level antitrust enforcement. In addition to the Live Nation case, a bipartisan group of state attorneys general has at least delayed the federal government-approved merger of broadcast companies Nexstar and Tegna. The case against the Nexstar-Tegna merger is being led by California Attorney General Rob Bonta and is supported by Kansas Attorney General and Trump ally Kris Kobach. The revival of state-level enforcement of antitrust enables state attorneys general and governors to gain media attention with actions that appeal to both progressives and MAGA conservatives. This is why Oregon Attorney General Dan Rayfield is trying to convince the state legislature to double the size of Oregon's antitrust team. Perhaps more significantly, California Governor (and potential 2028 presidential candidate) Gavin Newsom has proposed increasing the state's antitrust enforcement efforts. California, Colorado, and Washington have also passed laws mandating that businesses planning a merger or acquisition seek 'pre-approval' similar to the federal requirement. The movement to increase state-level endorsement of antitrust laws means companies planning mergers and acquisitions will have to invest additional time and money obtaining permission from one or more state regulators and/or attorneys general. The additional time and costs imposed on businesses by state level antitrust regulators creates a disincentive for many companies to engage in even the most potentially beneficial mergers and acquisitions. This will reduce economic growth depriving consumers of new products and workers of new job opportunities. Ironically, the beneficiaries of this enhanced use of state antitrust laws may be existing dominant firms. This is because state governments may prevent two medium-sized or small companies from merging in order to better compete with their larger competitors. State attorneys general and trial lawyers have also turned their attention to weakening Section 230 of the 1996 Communications Decency Act, which protects social media platforms from being held liable for posts by their users. This March, a California jury held Meta and Alphabet guilty of causing some of their users emotional and mental distress by failing to disclose the dangers of social media addiction. The court accepted the argument that Section 230 does not apply because the harm stems from the site's design, not its content. However, as Reason Magazine's Elizabeth Nolan Brown pointed out, features like autoplay and endless scrolling would not be effective unless the content is compelling. The case is currently on appeal. If the verdict is upheld on appeal, the floodgates will be open for similar suits in state courts. Financial advisor and CNBC commentator Jim Cramer dubbed Biden-era FTC Chair Lina Khan a one-woman wrecking crew for the economy because of Khan's aggressive approach to antitrust enforcement. Now the economy faces multiple wrecking balls as ambitious attorneys general, governors, and state legislators, as well as trial lawyers, seek to elevate their profiles through state-level antitrust prosecutions. This will result in higher prices, fewer jobs, and less choice for consumers. Copyright 2026 Charles Sauer, distributed by Cagle Cartoons newspaper syndicate. Charles Sauer is the president of the Market Institute and the author of 'Profit Motive' Sauer can be reached atcharles@marketinstitute.org. Maybe the best summer smell is whichever one makes you pause, breathe in, and remember that even the hottest days have their bright spots A few passing clouds, otherwise generally clear. Low 82F. Winds NNW at 10 to 15 mph. A few passing clouds, otherwise generally clear. Low 82F. 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