The Feds Don't Have an Antitrust Monopoly

The states have always played an important role in trust-busting.

Antitrust enforcement in the United States is often thought of as a federal endeavor—high-profile cases brought by the Department of Justice or Federal Trade Commission dominate national and international headlines. But this narrative misses a central feature of the American system: antitrust enforcement is deeply federalist.

State attorneys general are not just supporting actors or a side show—they are sovereign enforcers with the power to bring antitrust cases in federal court. This is a feature and not a bug of our system, consistent with the checks and balances that distinguish the U.S. model internationally. It should also not come as a surprise that the enforcement regime designed to tackle concentrated economic power is itself fragmented and not concentrated in the hands of too few actors.

Federalism in antitrust is having a moment. The recent, historic win by a bipartisan coalition of state AGs over LiveNation brought federalism into the national spotlight, but there are other examples. In March, several states sued to block a merger between NexStar and Tegna, two local television broadcasters. That case is pending in a district court in California.

In both the LiveNation and NexStar cases, the states stepped in after the United States decided to withdraw from the enforcement playing field. This moment captures a tension between federalism and a unitary executive intent on flexing and experimenting with that theory’s reach into antitrust enforcement.

Antitrust federalism is not new, and today’s iteration can learn from the past. From the beginning, U.S. antitrust law has accommodated overlapping enforcement. The Sherman Antitrust Act of 1890 and the Clayton Antitrust Act of 1914 create federal causes of action, but they do not preempt state enforcement. Instead, they coexist with state antitrust statutes—many of which mirror federal law—and allow state AGs to bring actions in both state and federal courts. Indeed, many state antitrust laws predated the federal laws, which were enacted in part to preempt a growing patchwork that was frowned upon by corporations.

The antitrust movement began with the states, largely in response to the rise of railroad monopolies, grain elevator combines, and industrial “trusts” in the late nineteenth century. 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 the nation’s 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.”

In their declaration, the Grangers called for government action to constrain private tyranny. This was the same perspective that, in 1890, drove an Ohio Republican from the foothills of the Appalachian mountains to draft the nation’s first federal antitrust law constraining private monopolization. Senator John 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.” What ended with Sherman in the Gilded Age began with the states and with local movements like that of the Grangers.

States in the Midwest and South were especially active in the early antitrust movement because farmers and small merchants were heavily affected by concentrated corporate power. Kansas, Texas, Missouri, and Michigan all enacted antitrust laws in the 1880s. Some even enshrined the policy in their constitution. The constitution of Texas, for example, declared monopolies “contrary to the genius of a free government.” (The voices of these Texan drafters have surely whispered through the ages to the current Texas Attorney General Ken Paxton, an antitrust hawk if ever there was one).

Unlike with federal enforcement, state-level antitrust frequently involves bipartisan coalitions working together. These multistate actions can rival federal cases in scale and impact, particularly with respect to industries like technology, healthcare, and agriculture. The ability and willingness of the states to work together on a bipartisan basis allows them to scale cases, even complex ones involving millions of documents and many witnesses.

The ongoing Google search monopolization case brought by the DOJ with support from 49 states and the District of Columbia is a striking example. In that case, the states pushed more aggressive theories of harm than the DOJ, particularly around platform dominance and vertical integration. As such the states served in their traditional role as incubators of innovation and disruption.

Where the federalism moment sparked by the LiveNation case brings us is yet to be seen. What is certain, however, is that the sometimes-dormant and often junior partner role states have played in federal antitrust enforcement is evolving. The states are tapping into their historic role as first responders and laboratories of democracy.

They are also mirroring how running for elected office plays into enforcement decisions for most state AGs. If the DOJ felt it could take a pass at litigation against LiveNation, the state attorneys general for whom running for office is a political reality could not. They knew they could not face the wrath of concert-loving consumers at home by settling the LiveNation case too early.

In this sense, the state AGs were also tapping into a more general feeling among their voters that the American Dream has moved beyond the grasp of many, controlled instead by a dominant few. As Treasury Secretary Scott Bessent said last year, “The American dream is rooted in the concept that any citizen can achieve prosperity, upward mobility, and economic security.”

The salience of these words to the LiveNation case is perhaps best illustrated by the testimony of smaller, independent venue owners and concert promoters, many of whom struggle to make a living in a market dominated by LiveNation.

In their complaint in the case, the DOJ and the state AGs produced internal communications showing LiveNation executives discussing strategies to punish or isolate these competitive threats through what the government described as a “self-reinforcing flywheel” that made market entry and expansion difficult. These small venue owners and concert promoters are in business in every state from California to Maine, and they matter to their elected AGs.

Antitrust is not the only panacea to reclaiming the American Dream, but it can surely play a role in correcting how Americans view themselves—as more than mere unempowered consumers. Antitrust law enforcement, whether at the state level or not, plays a role in achieving the American Dream because competitive markets enable individuals to achieve prosperity, upward mobility, and economic security.

In truly free markets, the American people shape the economy toward their own flourishing by starting and growing their own businesses, and through their choices 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.