Louis Brandeis and William McKinley: An Unlikely Pair United Under Biden

William McKinley won the presidency under the banner of the “Full Diner Pail” for workers allegedly underpinned by protection and high tariffs. Louis Brandeis, by contrast, was a free trader who abhorred concentrated corporate power (today’s Big Tech). The Biden administration has accomplished the unlikely feat of merging neo-Brandeisian trustbusting with portions of “Full Dinner Pail” protectionism.

US Trade Representative Katherine Tai has strongly criticized the “unfettered liberalization” of prior administrations and directly tied US trade policy to competition policy. In speeches and interviews, Tai has argued that prior “race to the bottom” policies have led to domestic corporate concentration, and a central aim of US international economic policy must be reining in excessive corporate power (“choke points”). In a speech at the Open Market Institute, she identified her goals closely with those of neo- Brandeisians such as Lina Khan at the Federal Trade Commission.

More broadly, National Security Adviser Jake Sullivan has proclaimed a “new Washington Consensus” that combines industrial policy for key technologies and discounted traditional binding trade agreements in favor of future priorities including labor rights, the environment, and sully chain protection. Tai has extended these themes, arguing that the goal of future US trade policy should not focus on consumer benefits from trade liberalization, but on utilizing advantages from the US’s position as the number one world economy to further our international economic interests. Fair enough, but without the enticement of new US market access, coercion loses its force—as the failed trade pillar of the administration’s Indo-Pacific Economic Framework demonstrates.

To be fair and precise, the Biden administration has not adopted the across-the-board tariffs of the McKinley era and it has not moved to abandon existing US trade agreements, including most World Trade Organization rules. However, it has extended President Donald Trump’s national security steel and aluminum tariffs on both friend and potential foe, in defiance of World Trade Organization decisions against them. And, in legislation such as the Inflation Reduction Act, it has combined huge subsidies with protectionist restrictions—put into law by President Joe Biden’s relentless “Buy America” pressure on public procurement.

Finally, to square the Brandeis/McKinley circle, the Biden administration has involved competition policy to defend its retreat from digital trade rules that assure the free flow of data in the future digital economy. Brandeis/McKinley trade and tech policy is substantively absurd—but for the Bidenites’ political catnip.