Antitrust in Transition: Trump’s Potential Impact on Healthcare Oversight
Healthcare market oversight at the federal level is primarily done through litigation brought by the Federal Trade Commission (FTC) or the Department of Justice (DOJ). Any change in administration in Washington will change the focus and priority of these agencies. Nonetheless, the second Trump administration has indicated that it will make wholesale changes to federal agencies, including the FTC and DOJ, that exceed those that are typical during a change in administration. These indications raise many questions about the new role of the FTC and DOJ in healthcare markets: How much will the ideological focus of the FTC and DOJ change under the Trump administration from the Biden administration? How many existing FTC/DOJ staff can/will Trump’s team remove? And what can we expect from healthcare market policy over the next four years?
Department of Justice
The United States Department of Justice is the federal executive agency that oversees federal law enforcement and oversees federal law enforcement agencies such as the Federal Bureau of Investigation, the Drug Enforcement Agency, and the Bureau of Alcohol, Tobacco, and Firearms. The DOJ has over 110,000 employees and a 2024 budget of $37.52 billion. The DOJ has eight litigation divisions covering Criminal, Civil, Antitrust, Tax, Civil Rights, National Security, Justice Management, and Environment and Natural Resources. In recent years, much of the work of the Antitrust Division has included healthcare markets; the DOJ has filed suits to limit mergers and acquisitions, tying agreements, and predatory pricing. The Attorney General of the United States leads the DOJ. The Attorney General is appointed by the President and requires confirmation of the Senate to take office. As of this writing, President-elect Trump has named Pam Bondi, the former attorney general of Florida, to replace Merrick Garland as Attorney General.
President-elect Trump has long stated his unhappiness with the DOJ, claiming that many of the DOJ's criminal cases are politically targeting conservatives. Trump’s claims of “deep state” activity are often aimed at the DOJ's Criminal Division. He also identified the National Security Division as a source of problems in his first term, and the Civil Rights Division as frequently a target of criticism by the hard right. Areas like the Environmental and Natural Resources Division and Voting Rights often see turnover any time a Republican takes over due to substantial ideological differences. The DOJ is not a monolith, and there is always the possibility that actions taken by the new administration may target these areas, while leaving other divisions (including antitrust) relatively unscathed.
Federal Trade Commission
The FTC's mission includes enforcing civil antitrust law and shares jurisdiction of this area with the DOJ Antitrust Division. Congress established the FTC in the early 20th century in response to late 19th-century monopoly trust issues. The FTC has over 1100 employees and a 2024 budget of $425.7 million. Five Commissioners, serving seven-year terms, lead the FTC; no more than three members may be from the same political party. Currently, there are three Democratic Commissioners and two Republican Commissioners, but Lina Khan's term as commissioner expired in September 2024. The President nominates commissioners when vacancies occur and nominees require Senate confirmation. As of this writing, President-elect Trump has named Mark Meador, a partner at law firm Kressin Meador Powers and former antitrust counsel to Republican U.S. Senator Mike Lee, to take Lina Kahn’s seat as FTC commissioner. The President also chooses one Commissioner as the Chair, serving at the President’s pleasure. Because naming the new Chair from the existing Commissioners does not require Senate confirmation, the new administration could appoint either of the current Republican Commissioners as Chair, or acting Chair, within a few days of taking office. The Chair has significant authority, including the ability to open and close investigations without a vote of Commissioners. The FTC also has three Bureau Directors, leading the Bureau of Competition, the Bureau of Consumer Protection, and the Bureau of Economics. During the Biden Administration, the FTC, like the DOJ, has been highly involved in enforcing antitrust laws in healthcare markets.
Trump has criticized the FTC, claiming that it acts like a “fourth branch of government”, and conservatives have felt that much of the FTC’s recent rulemaking (including rules addressing non-compete agreements, telemarketing, and privacy) was an unconstitutional grab of power that should be reserved for Congress. Historically, the FTC has been largely apolitical, and didn’t experience significant changes due to new presidential administrations.
Changes in Policy Under Trump’s Second Administration
Regardless of how much staff and leadership turns over, there will likely be changes in how the DOJ and FTC address consolidation in healthcare markets. There appears to be a split among Republican leaders between those who want to take an aggressive stance on Big Tech companies and other monopolies and others who want a more "business-friendly" approach. Many of the antitrust cases currently in process were begun during the first Trump administration. Vice President-elect J.D. Vance has praised Khan’s aggressive stance at the FTC, while Elon Musk has been among her critics. Pam Bondi, the current nominee for U.S. Attorney General, previously served as Attorney General of Florida, where she was involved in antitrust suits against generic drugmakers and optical disk drive manufacturers. Gail Slater’s nomination to lead the Antitrust Division of the DOJ has been seen as a sign that the Trump administration will continue to crack down on Big Tech, but it is unclear if she will continue the aggressive approach to antitrust enforcement in other areas. Areas where we could expect change include:
- Rulemaking – Conservatives have been unhappy with recent FTC rulemaking, claiming that the agency frequently exceeds its statutory authority. The current FTC may attempt to accelerate rules that are near completion to get them passed before leadership changes. The history of dissent from the current two Republican Commissioners would indicate unhappiness with innovative methods of interpreting statutes and expansive rules and guidance. Although new rulemaking is expected to slow considerably, how much of a priority rolling back existing regulations is uncertain.
- Return of fixable deals – Historically, merging entities could fix aspects of their deals (often through divestitures or consent orders) to avoid regulatory challenges, but this was largely disallowed during the Biden administration. The Trump administration is expected to bring this back to create a more merger-friendly environment.
- Withdrawing 2023 merger guidelines—In 2023, the FTC and DOJ issued joint merger guidelines, a significant step that enhanced scrutiny of merger activity. Current Republican FTC Commissioner Melissa Holyoak has stated that the new administration should “strongly consider” rescinding or revising the guidelines. The Trump administration is expected to abandon these, but whether they revert to earlier merger guidelines or draft new ones is uncertain.
Changes in Staff
Trump’s unhappiness with federal agencies goes beyond their leaders, and indications are that he intends to oversee significant changes in federal personnel at all levels. However, career civil servants, including DOJ and FTC staff, are protected by merit principles, meaning that unless their job classifications are changed, they cannot be fired based on political preferences, or as if they are at-will employees. Wholesale staff changes will require other strategies, which may include:
- Budget cuts – Cutting the budgets of the DOJ and FTC would likely result in a staffing reduction, but the administration could not target specific employees. Additionally, since budgets are set by Congress, this strategy would require Congressional support.
- Administrative leave – There is a history of using paid leave to take employees out of positions without technically firing them. In 2014, the Government Accountability Office found more than 260 federal employees had spent one to three years on leave, costing approximately $31 million. In 2016, Congress passed the Administrative Leave Act to limit how long agencies can put employees on leave, but the law requires the U.S. Office of Personnel Management (OPM) to promulgate rules before it can go into effect. Despite having over seven years to do so, OPM has not finalized this guidance. A lawsuit filed by the Public Employees for Environmental Responsibility against OPM (to force OPM to finalize the rules) cited examples of federal staff being put on paid administrative leave for months or years, causing their careers suffer.
- Voluntarily leaving – Members of Trump’s transition team have stated that "DOJ employees (who) won't implement President Trump's program in good faith … should leave." Reports differ as to how likely this is to happen. Some have noted that fear and trepidation may drive many to quit. Others have said that staffers who are career prosecutors and agents may have the tough, stubborn mindset to stay and fight. Current Attorney General Merrick Garland has asked staff to stay with the agency through Trump’s second administration.
- Relocation/Back to office mandates – The new administration can relocate federal employees to new stations far away from their current homes and can require workers to end remote and hybrid working accommodations. These tactics appear to be an intentional tool to get current staff to resign; in a Wall Street Journal piece, Elon Musk and Vivek Ramaswamy (named as leaders of the proposed new Department of Government Efficiency) wrote, “Requiring federal employees to come to the office five days a week would result in a wave of voluntary terminations that we welcome”. Famously, when Richard Nixon was President, the administration was concerned about federal employees not being on board with Nixon's agenda and developed a "Responsiveness Program" to ensure staff was responsive to Nixon’s goals. Among the items in the plan was a document created by Fred Malek called the “Malek Manual." At the end of the document, there are pages detailing ways you can make federal employees miserable so they will quit, which includes changing their work hours and reassigning them to different locations. It is unclear if Musk and Ramaswamy are intentionally borrowing from Nixon's playbook or if the similarity is coincidental.
- Schedule F – Perhaps the potentially most effective tool for large-scale staff turnover would be a revival of Schedule F, which was a key element of Project 2025. In October 2020, Trump issued an executive order that would have converted federal staff into positions that could be fired "at will," easing the ability to replace staff viewed as disloyal to Trump. The order would also have included statements of allegiance to the President when hiring for federal positions. This was referred to as "Schedule F" – the name of the new employment category being created. The Biden Administration rescinded the original Schedule F before it went into effect; experts differ as to how many federal employees would have been fired and replaced, but estimates vary from the tens to hundreds of thousands. Trump has promised to reissue Schedule F on “day one” of his new administration. The Biden administration has attempted to finalize regulations that would make it harder to implement Schedule F. Still, legal experts are not convinced these protections will do more than delay, but not prevent, Schedule F. Legal challenges will almost certainly be filed when Trump reissues Schedule F. If plaintiffs can find a friendly court, short term success could be possible, but Trump's ability to act using Schedule F may depend on if a lower court grants a broad injunction or not, and how long it can take before the cases make it to the Supreme Court.
The role of States Will be Heightened
The federal government is not the only entity that has the ability to challenge healthcare transactions. Some of the void in antitrust enforcement created by a reduction of DOJ and FTC efforts could be filled by increased activity by state Attorneys General. Many state AG offices are already very heavily involved in challenging mergers, promoting legislation to stop price-gouging, and changing premerger notification requirements. Increased activity by state AGs may represent the best possibility for future scrutiny of healthcare merger deals.