Assistant Attorney General Gail Slater Delivers Remarks at Drake University Law School on Antitrust and Agriculture

Remarks as Prepared for Delivery, "Agriculture, Antitrust, and Chesterton’s Fence"

Thanks so much for the kind introduction and the warm welcome. It is an honor to be here at Drake Law School with you all. I would like to thank the Federalist Society for hosting me. I spoke at Ohio State Law School earlier this year and Fed Soc hosted me there too.[1] The young people I met at the Ohio Law School Fed Soc reminded me of my former colleagues in the Vance Senate office as well as the amazing Gen Z administration appointees I got to know during the Trump-Vance transition last year. Yours is a generation forged by a financial crisis, a pandemic, and a new geopolitical world order. Older lawyers like me have much to learn from you, so long as we are willing to listen to you.

The Gen Z conservatives I know in D.C. think about the American Dream much the same way you do. In a world in which New York City just elected its first socialist mayor, young conservatives worry about the longevity of the American Dream. They know that socialism is not the answer, but they also see the American Dream slipping the grasp of many peers. How, they ask, can I marry and start a family when I cannot afford to buy a home and pay down college loans? Can I pay this month’s bills when my rent alone accounts for one third of my monthly income? Can my family afford to keep our century farm as a viable business when our margins are razor thin? In sum, might I be priced out of my American Dream?

Those worries explain the empty allure of socialism. Some might think the government can just take care of it. Maybe the American Dream isn’t earned or forged but centrally planned and then handed out. This is a question on some Gen Z minds. That’s not who we are though. That may be somebody’s dream but it’s not the American Dream. America is built on the freedom of every individual to pursue happiness as they decide. That’s what is so exceptional about it — we all get to dream for ourselves. And that collective energy drives the free market system forward, increasing prosperity for consumers, workers, and large and small businesses.

The good news is that we have been here before in our nation’s history, and we have some solutions to hand. The Trump administration is working hard to ensure that macroeconomic policy is working hard for our free market system. Earlier this year, the administration worked with Congress to enact historic tax cuts that will come into sharper relief in the new year, and inflation is lower than it was this time last year. The administration’s deregulation and energy policy agendas are also working their way through the economy. And, of course, the antitrust laws have a role to play here too, as was noted by the President when he recently tasked the DOJ with investigating meat pricing and the “Big Four” meat packers. These policies can and will foster our free-market enterprise system today much as they have done in the past. The antitrust laws grew up at the turn of the 19^th century, at a time when socialist ideology was taking root in Europe and Russia and around the world. The socialists back then also presented a false binary — either let the titans of the Industrial Revolution smash the prosperity of the individual, or have government nationalize and collectivize industry. They painted a picture where either the Robber Barons would run the economy, or the government would.

But the United States created a third way. Let the American people run the economy through their choices in the free markets while enforcing antitrust laws to protect competition. In 1948, the Federal Trade Commission (FTC) recast the choice to emphasize this alternative. “[A] definite choice [has to] be made,” it wrote. “Either this country is going down the road to collectivism or it must stand and fight for competition as the protector of all that is embodied in free enterprise.”[2]

The FTC knew in 1948 what we at the DOJ Antitrust Division believe to be true today. Robust antitrust enforcement has a key role to play in defending our free-enterprise system from monopoly and collusion that can stifle competition, making it harder for consumers, workers, and small businesses to survive and thrive. Stated differently, antitrust enforcers protect competition for all Americans and their American Dream. We are quite literally the free market cop on the beat.

Our nation’s antitrust laws are over a century old. They are grounded in a bipartisan consensus forged in the Gilded Age by conservative leaders including Presidents Roosevelt and Taft as well as Senator Sherman, whose name will forever be attached to our grounding antitrust statute, the Sherman Act of 1890.[3] These Republican leaders knew that in order for American free markets to thrive and succeed, we needed an effective antitrust cop on the beat. As Senator Sherman noted, monopolies are “inconsistent with our form of government . . . . If we will not endure a king as a political power we should not endure a king over the production, transportation, and sale of any of the necessaries of life. If we would not submit to an emperor we should not submit to an autocrat of trade.”[4]

The American people today agree with these early conservative trustbusters. Rasmussen polling from earlier this month underscores the belief in antitrust enforcement to protect free market competition. Asked whether large corporations have too much power and the government should do more to enforce antitrust laws, 70% of voters agreed. Another 66% believe it is likely or somewhat likely that strong enforcement of antitrust law would result in lower prices for consumers. And nearly 80% agree with President Trump’s remarks upon my nomination, that “Big Tech has run wild for years, stifling competition in our most innovative sector.” These views are remarkably bipartisan as well, with Republican voters feeling just as strongly as Democrats.

Unfortunately, enforcers did not always share this view and sometimes took for granted the role of antitrust in protecting the free market from abuses of corporate power. In recent years we have seen our economy become increasingly concentrated in particular economic sectors. Antitrust enforcers like me played a role in this trend. In fact, I worked at the Federal Trade Commission from 2004 to 2014 and saw it firsthand. Beginning in the 1980s, it became accepted wisdom that antitrust enforcers should take a very light touch to enforcement because markets can self-correct over time absent significant entry barriers. Antitrust enforcers also took the view that concentration is rarely, if ever a problem, exclusionary conduct is rare and fleeting, and buyer market power is rarely a concern.

For many conservatives, these assumptions first came under strain with respect to Big Tech platforms, which likely explains why the Google search case was filed in late 2020 by the Trump 45 Administration.[5] In fact, the Google search case was the first monopolization case filed by the DOJ Antitrust Division in 20 years under successive administrations. Significantly, the case grew to receive support from no fewer than 49 states, including Red States from Texas to North Dakota.[6] The Google search case challenged several of the core antitrust assumptions set in stone by prior decades: that concentration is fleeting, that exclusionary conduct is rare, and that markets self-correct over time. To be clear, Google search is just one case, and one case does not create a world in which “Big is Always Bad,” but Google and other more recently litigated cases have prompted debate on the Right about the role of antitrust beyond Big Tech. Our antitrust laws are not, of course, limited to the tech sector and apply across industries, which means that if the 1980s assumptions need revisiting in one case, it is also possible that similar thinking is needed in other economic sectors. 

Inspired by actions taken in the first Trump administration, an increasing number of conservatives are turning to the founding ethos of antitrust enforcement and the role it plays in keeping our markets free. In doing so, we can apply Chesterton’s Fence principle. For those of you unfamiliar with it, Chesterton's Fence is a principle that advises against changing or removing a law, rule, or custom until you understand the reason it was put in place.[7] It suggests that if something exists, it likely serves a purpose, even if that purpose isn't immediately obvious to contemporary observers. The principle encourages a cautious and conservative approach to change, urging people to understand the “why” before making alterations to avoid unforeseen consequences.

In the case of our century-old antitrust laws, this means revisiting their roots and the wisdom behind them. To be clear, this does not mean that we propose a wholesale return to 1890, but it does mean approaching our role as antitrust enforcers with humility. We have learned much in the intervening decades about markets and competitive dynamics since the Sherman Act, much of it from economists, and these insights are brought to bear by us every day. But we must also, at the same time, acknowledge that our century-old antitrust laws exist for a reason. This is Chesterton’s Fence in action.

America First Antitrust

Earlier this year in my inaugural speech at Notre Dame Law School, I outlined a governing philosophy for antitrust enforcement in the Trump Administration.[8] I am of course mindful that I do not speak directly for President Trump, but he gave me a job to do and, as the saying goes, “personnel is policy.”

The framework I set out in the speech is based around three guiding principles:

First, today’s conservatives are rightly concerned with the undue exercise of government power and private power that impinges on their freedom. As I explained in my Notre Dame speech, the kids refer to these two phenomena as “Tyranny.gov” and “Tyranny.com.” Tyranny.gov is a long-standing concern of the political right and we must remain vigilant against it. Tackling the undue exercise of government power remains a righteous and perennial cause, which is why we at the DOJ Antitrust Division earlier this year asked for feedback about the ways in which government regulation stifles competition. We have submitted this feedback to the White House for consideration as part of an administration-wide deregulation agenda. In addition to this policy work, we have put deregulation to work on our merger review docket by revitalizing the speed with which we review mergers that are benign and handle consent decrees for those that are problematic from an antitrust standpoint.

However, more recently conservatives including the President and his family have come to realize that the free market does not always solve for economic freedom absent competition. Not to put too fine a point on it, but we can all remember the dark days of 2021 when we saw many conservatives debanked and deplatformed by powerful corporations. This is what the kids call tyranny.com. In the Notre Dame speech, I suggested that conservatives should be unafraid to tackle the undue exercise of private power. I argued that to have markets that are truly free, we need markets to thrive free not only from Tyranny.gov, but also from Tyranny.com. This is where effective antitrust enforcement can come into play.

The third prong in the Notre Dame speech had to do with the role of textualism and originalism in antitrust law enforcement. As card-carrying FedSoc members, the last thing you need is a lecture on textualism and originalism from me. However, it may surprise you to learn that many antitrust lawyers do not share your viewpoint, including conservative practitioners in the antitrust bar. In recent decades, they chose to in some instances ignore binding court precedent and textualism in favor of economic models and soft law.

The reaction from some Beltway commentators to my Notre Dame speech was surprising, to say the least. You see, I thought I was stating the obvious when I spoke about Tyranny.com being a source of concern to many conservatives, including President Trump himself. I also thought that a call to action regarding textualism and originalism in antitrust would be uncontroversial given their salience in the broader conservative legal movement. Nevertheless, some critics snapped back that I had no business questioning the status quo and needed to listen harder to economists. After all, who did I think I was: the Senate-confirmed head of the Antitrust Division?

Lame jokes aside, I stand by the speech. Tyranny.com is a legitimate concern and textualism is the conservative’s friend. This means that precedent matters, and we cannot as antitrust lawyers pick and choose the precedents we follow in our decision making. The law is the law, and as AG Bondi likes to say, “no one is above the law.”[9] To be clear, this does not mean that economics are irrelevant to our work at the Antitrust Division. Quite the contrary. We work with economists in all our cases and are proud to count 50 Ph.D. economists among our ranks. We are also privileged to include in our Front Office ranks our sainted Deputy for economics Chetan Sanghvi. Chetan is a brilliant Ph.D. economist with over 30 years of experience in the antitrust field. We ignore him at our own peril. He too is deserving of Chesterton’s fence, as is the work of our economists and their predecessors. Like our fellow conservatives, we do not eschew modernity — quite the contrary. Our job, as the great English conservative Roger Scruton observed, is to embrace modernity, but to “embrace it critically, in full consciousness that human achievements are rare and precarious, that we have no God-given right to destroy our inheritance, but must always patiently submit to the voice of order and set an example of orderly living.”[10]

DOJ and Agriculture

This brings me finally to agriculture and the Great State of Iowa. As Midwesterners, the last thing you need is a lecture on agriculture from someone who lives on Capitol Hill in Washington, D.C. In Iowa, the free market hinges on your agriculture industry, from soy to corn, from beef to pork. Where I can perhaps shed light is to talk about the ways in which antitrust enforcement intersects with agriculture. After all, farmers were there at the dawn of the antitrust movement in the Gilded Age and were a key force behind the antitrust movement.[11]

Few professions better exemplify the American Dream than farming and agriculture. The dream of a farmer to work the land, grow a crop, build a life, and contribute to their community, is very close to our founding essence.

But agriculture also exemplifies the threats Tyranny.gov and Tyranny.com pose to the American Dream. I for one do not believe the government should be telling farmers what to plant and when, how and where to harvest and sell their crops, and when they’re allowed to upgrade their tractors. Socialist experiments in agricultural control have been amongst the most devastating historical examples of the perils of central planning. We do not want to model our economy after Stalin’s, after all.

At the same time, we must stand guard against Tyranny.com when it comes to our farmers and their ability to navigate the free market. This applies to their dealings as buyers of key inputs as well as their ability as sellers in the agriculture marketplaces. 

That’s why this DOJ believes that antitrust enforcement in agriculture must be a top priority. Under the Sherman Act and the Clayton Act, the DOJ Antitrust Division is tasked with enforcing the antitrust laws in three core areas: collusion, monopolization, and mergers. These laws cut across sectors, meaning they apply across our economy, including to agriculture. We also have a role to play in enforcing the Packers and Stockyards Act (PSA).[12] This legislation, enacted in 1921, has provisions that are similar to the antitrust laws, but it also has provisions that prohibit meat packer conduct that is deceptive, unfair, or unjustly discriminatory. We share enforcement authority of the PSA with the USDA. USDA has the investigatory powers. For most violations involving poultry, USDA must refer the matter to DOJ if legal action is necessary.[13] Otherwise, for other livestock, the USDA can investigate the matter or refer to DOJ at its discretion.[14]

In the past decade, these antitrust laws have interacted with agriculture in differing ways with differing results. The first Trump Administration investigated merger and acquisitions activity in the seed sector. In 2017, the Dow-DuPont merger combining the companies’ crop protection and seed businesses was approved with divestitures.[15] Similarly, in 2018, the Bayer-Monsanto merger, which was the biggest agriculture merger ever, was approved with significant divestitures involving seeds and herbicides.[16] The 2017 global merger of ChemChina and Syngenta was also cleared by the FTC despite some concerns regarding ChemChina’s foreign ownership. In contrast to Trump 45, the Biden Administration did not see much merger activity in the agriculture sector. Instead, the DOJ Antitrust Division brought some of the first PSA cases in recent decades and enforced antitrust laws in agriculture labor markets. That Administration also challenged information sharing among processors when it alleged increased prices for turkey, poultry, and pork products in the Agri Stats case, which is pending in the District of Minnesota.[17]

The Path Forward

The second Trump USDA and DOJ committed in September this year to formalize a partnership under a Memorandum of Understanding (MOU) to protect competition in key agricultural markets such as feed, fertilizer, fuel, seed, equipment, and other essential goods.[18]According to USDA’s data, since 2020, seed expenses have risen 18 percent, fuel and oil costs increased 32 percent, fertilizer expenses increased 37 percent, and interest expenditures spiked 73 percent.[19] The reasons underpinning these numbers vary and need to be investigated and analyzed, but the numbers themselves should give everyone pause. At the time of the MOU, I noted that “Antitrust enforcement ensures free market competition for agricultural inputs, lowering costs for farmers and prices for consumers. America’s farmers deserve nothing less than the best the Antitrust Division and USDA can do to promote competitive markets that free them to feed America.”[20]This MOU is a positive start, but more is required to operationalize it, which brings me to today.

As I noted earlier, personnel is policy, and antitrust enforcement is no exception to this general rule. For agriculture cases, it is particularly important where our personnel are physically located. We plan to focus much of our enforcement work out of our Chicago field office and have already opened several investigations in that office since the start of the Administration.

To that end, I am pleased to announce Zachary Trotter as the new career head of the Chicago office. Zachary is a seasoned litigator, and we are excited to see the energy and determination he brings to his new role. He is joined by Ben Christenson, who will be serving as an Assistant Chief for criminal enforcement and John Thornburg who will continue serving as Assistant Chief for civil enforcement in the Chicago office. Together, they will have the full support of our Front Office at the Antitrust Division in bringing important cases consistent with overall Administration policy.

What might these cases look like? Well, it is no secret that President Trump loves our farmers, and he is a man of decisive action. This is why he recently issued an executive order via Truth Social directing the DOJ to investigate the beef packing industry. Additionally, the MOU between the USDA and DOJ gives us some direction because it directs us to focus on lowering costs of key inputs like feed, fertilizer, fuel, seed, equipment, and other essential goods. We have also met with many agricultural industry participants since starting into our time in office. My grandmother used to tell me, “God gives us two ears and one mouth for a reason,” and I try to honor her memory by being a good listener. One meeting in particular is etched in my memory. It took place in the DOJ’s Great Hall, which is our biggest meeting space. At the meeting, we gave farmers an open mic and heard them out. And, boy, did they make their feelings known! One common theme emerged from our meetings: now is the time for action in Trump time.

Our agriculture cases will be informed by the President’s order regarding beef, our MOU with the USDA as well as our industry meetings. But they will of course turn on the facts and evidence and be grounded in existing law and precedent. And we will as always work with our economists in our investigations. We will be well-served with our whistleblower rewards program with the U.S. Postal Service, in which whistleblowers will now be compensated for reporting criminal conduct to the Antitrust Division. Together with new personnel and creative MOUs with partner agencies, now is the time to seize to our mission and deliver for the heartland American workers and consumers.

We will not, however, continue to take certain assumptions too much for granted. If our Big Tech cases against Google have taught us anything, it is that even relatively fast-moving Internet markets can remain monopolized for decades. Our litigation experience suggests that we cannot assume that markets will always self-correct, that market concentration is never a problem, that entry is always easy, that exclusionary conduct usually fails, and that buyer power is never an issue worth investigating. Similarly, we will exercise our criminal antitrust jurisdiction over bid rigging, price fixing, and other per se conduct as appropriate when well supported by facts and evidence.

Let me conclude by telling you why I’m so hopeful that we can succeed here. As I mentioned at the outset, there is significant bipartisan support for strong antitrust enforcement in the electorate and politically. I attended a Judiciary Committee hearing on antitrust and agriculture just a few weeks ago, and you would be shocked to see the bipartisanship and agreement in the room. As farmers testified about the competitive challenges they face, Republican and Democratic Senators alike cheered them and urged strong antitrust action to help America’s farmers.[21]

My father-in-law Dale is a rancher in Oregon, and I know from personal experience how much it means to ranchers and farmers to keep the family business going from generation to generation. This is the rancher’s American Dream. But this can only happen if the current generation can keep their ranch operating in free, fair, and competitive markets. For this to become reality, our great farmers, ranchers, and small businesses like independent seed dealers need an antitrust cop on the beat. We at the DOJ Antitrust Division stand ready to serve them with open hearts and, importantly, open minds.