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

1880s, John D. Rockefeller's Standard Oil Trust reportedly ­controlled 90 percent of U.S. oil refining. Roosevelt had for some time been critical of the trusts (and overcapitalization in general), referring to them in a speech as “evil,” thereby not endearing himself to the titans of industry who felt it better to restrict Teddy to the (at the time) largely powerless ­vice-presidency. That plan worked for a short six months until Roosevelt became president after McKinley's assassination. Once he assumed the office, Roosevelt directed his attorney general, Philander C. Knox, to review the legality of the trust-created monopolies under the Sherman Act. Knox initially advised against prosecuting the trusts because of unfavorable Supreme Court precedent at the time, but on Nov. 13, 1901, J.P. Morgan announced perhaps the boldest trust then to date: the combination of the Great Northern, Northern Pacific and Union Pacific ­railways (each a monopoly in its own right) to form the Northern Securities Co. Sensing a ­political opportunity and intending to demonstrate his strength to stop the “evil” of trusts, on Feb. 20, 1902, a mere five months into his presidency, Roosevelt announced that the Department of Justice would file suit against Northern Securities. Roosevelt took an active role in the case, selecting a favorable forum (the District of Minnesota, where a related state case was pending) and directing Knox to conduct the investigation in secret until the day the Department of Justice filed suit. Within days of the ­announcement, Morgan arrived at the White House and demanded to know why the president had not first approached him with his concerns. As Morgan told the president, “If we have done anything wrong, send your man to my man and they can fix it up.” Roosevelt tersely responded, “That can't be done.” Knox added, “We don't want to fix it up, we want to stop it.” Morgan's gambit to fix the problem in the usual manner of the day failed when faced with the presidential big stick. Roosevelt would ultimately win the fight against Morgan. After a legal battle all the way to the Supreme Court, on March 14, 1904, Justice John Marshall Harlan announced from the bench: “No scheme or device could more certainly come within the words of the [Sherman] Act … or could more effectively and certainly suppress free competition.” Roosevelt had beaten Morgan by a 5-4 decision, and Northern Securities was dissolved under the Sherman Act.

President John F. Kennedy

Sixty years after Roosevelt's inauguration, following further trust busting cases, always-evolving judicial decisions and ­increasing government investigations, the nation faced a new set of priorities. Set in the mire of the Vietnam War and facing off against the Soviet Union in the dead of the Cold War, the “military industrial complex” (a term made famous by President Dwight Eisenhower's 1961 farewell address) was of paramount concern to national ­security. Early in President John F. Kennedy's administration, a labor strike in the steel industry threatened to disrupt production and contribute to rising monetary inflation. To avoid these political nightmares, Kennedy using the full powers of the ­presidency pressured the largest steel company, United States Steel (ironically formed by J.P. Morgan and organized with the legal help of Roosevelt's AG Philander Knox), and the United Steelworkers Union to reach a deal to keep wages low and avoid output disruptions. Kennedy's strategy succeeded, and U.S. Steel and the union struck a deal to limit wage increases to 10 cents an hour, a major success for his administration.

However, less than two weeks later, the chairman and CEO of U.S. Steel, Roger Blough, personally handed the president a letter in the oval office informing him that U.S. Steel would be raising prices by 3.5 percent, which other steel companies would quickly follow. Furious, the president exclaimed to Blough “you double crossed me” and later confided with his Secretary of Labor (and later Supreme Court Justice) Arthur Goldberg, “He f–ked me. They f—ked us and we've got to try to f–k them.” In an April 11, 1962, press conference, Kennedy excoriated the “simultaneous and identical actions of U.S. Steel and other leading steel corporations,” accusing “a tiny handful of steel executives whose pursuit of private power and profit exceeds their sense of public responsibility” of showing “utter contempt for the interests of 185 million Americans.” The decision, he said, would increase consumer prices and “add … an estimated $1 billion to the cost of [American] defenses, at a time when every dollar is needed for national security and other purposes.”