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L-R Carl Hittinger and Tyson Herrold, Baker Hostetler.L-R Carl Hittinger and Tyson Herrold, Baker Hostetler. ()

In June, we discussed the Trump ­administration’s candidate for the top post in the Department of Justice’s Antitrust Division: Makan Delrahim. During Delrahim’s confirmation hearing, Sen. Amy Klobuchar pressed him, “What would you do, if you’re in this job, if the president, or the vice president, or a White House staffer calls, and wants to discuss a pending investigation of an antitrust matter?” Delrahim responded, “The role of the assistant attorney general for antitrust is a law enforcement function,” and that “politics will have no role in the enforcement of the antitrust laws.” Delrahim’s comment appeared to placate Klobuchar’s present concerns about White House intercession or interference in pending antitrust investigations, although a confirmation vote by the full Senate is still pending. However, viewed historically, the constitutional role of the executive branch and the president in particular in dictating, directing and controlling antitrust enforcement policy is far more complex and nuanced. As is often the case, history provides the necessary context to answer thorny constitutional questions.

President Theodore Roosevelt

While the Sherman Act was passed in 1890, it did not become a staple of federal domestic policy until 1901, when Teddy Roosevelt was sworn into the Office of the Presidency after William McKinley’s ­assassination. Former Presidents Harrison, Grover Cleveland and McKinley had largely ­ignored the increasing consolidation of big industry. Meanwhile, the titans of the steel, oil and financial industries ­combined forces to build massive trusts—organizations designed to hold the stock of constituent ­organizations (like holding companies)—and conspired to fix and control prices, exclude and harm competitors with a panoply of predatory means and dominate the output of available goods and services in relevant markets. For example, by the

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