The Department of Justice (DOJ) recently announced a task force designed to eliminate anticompetitive state and federal laws and regulations that “undermine free market competition and harm consumers, workers, and businesses.” This followed President Trump’s Executive Order 14192, which had similar goals, and the Federal Trade Commission joined the DOJ in its announcement.
What Does It Mean?
The outcome of the task force will be determined in the coming months or years. What is known is that the DOJ is focused on regulatory capture, which it defines as agencies becoming beholden to special interests and big businesses at the expense of the American people. To that end, the Task Force has invited the public to submit deregulatory recommendations at Regulations.gov.
The DOJ’s announcement identified a few industries they intend to target, including housing, transportation, food and agriculture, healthcare, and energy. By way of example, the types of regulatory constraints the DOJ identifies include regulations that make it more difficult for companies to build; regulations that grant antitrust immunities or monopolies to airlines and to rail and ocean shipping; healthcare laws that discourage doctors from providing low-cost healthcare; and regulations designed to increase the price of energy.
The DOJ’s press release refers to a 2018 report that summarizes several roundtables discussing deregulation and provides a peek into the types of deregulation the first Trump administration’s antitrust leaders considered. The roundtable participants challenged the legitimacy of the state action doctrine under Parker v. Brown, which immunizes certain state regulations from federal antitrust laws. The participants also challenged local government restrictions such as state restrictions on the provision of legal services as stifling competition.
Recommended Actions
Companies that feel hamstrung competitively by regulations and laws can consider submitting deregulatory recommendations. If, for example, an energy provider is constrained by price caps or a real estate firm is constrained by rent control, a well-written submission could result in the antitrust agencies’ revisiting the regulation.
Companies concerned with deregulation in their industry can also comment. For example, if a green energy company has concerns that deregulating coal could lead to a challenging competitive environment, commenting could be appropriate. Or a hospital that is concerned that the removal of the state action doctrine–protected regulation could impede the hospital’s competitiveness could advocate for continued exemption.
McCarter & English Antitrust can assist in drafting a strategically designed advocacy submission. For more information, contact Robin Crauthers.