656
The Green Bag
ADMINISTRATIVE DISCRETION lN ENFORCING THE SHERMAN ACT AWS are made by the legislature, declared by the judges, and admin istered by the executive. The spirit of our institutions demands that the popu
lar will be given effect through the organs of legislation, and forbids the judiciary and executive from exercising law-making functions. So much, at
tive never has any discretion in enforcing the laws. Before it can enforce any law it must first know what it means. If the meaning is obscure, the executive must
seek light from the statutes or the courts; failing in this, it must either exercise its own judgment to determine the meaning of the law, or leave it alone
and fail in the performance of its duty to enforce it. From the adoption of the Sherman act until the close of Cleveland's second
least, is the theory of our government. But in practice, it is found that leaving the legislative function exclusively to the legislature would frequently result
administration, there was what we may
in defeating the popular will. Legisla tures are in the habit of enacting laws
school, ing onlyand to business it construed abuses the whose act as applY' injuri
in a vague or incomplete state, which cannot possibly be administered in the shape in which they issue from the
ous character was undeniable. AS a result suits were brought only against the clearest forms of unlawful monopoly
legislature.
prohibited by the act.
Consequently judges and
administrators must in some cases make the law.
call an administrative interpretation of the law. The administration had no leanings to the unlimited competition
The effect of this administrative policy was significant.
The United States
The Sherman anti-trust act was a
Supreme Court, if it had been called
law of this kind, adopted in a vague and inchoate form. The original purpose leading to its adoption is in dispute. By some the law is thought to have
the act before the administration had oly singled forout prosecution, the grosser would phases of have m0n0P‘ had
been a device to enable the government
to check only the more pernicious and flagrant forms of corporate activity tending to injure freedom of trade; by others it is supposed to have been an
upon to rule on the constitutionality 0f
either to pronounce it void for un certainty, or to legislate into it a clearer meaning. Either course would have subjected it to attack.
The moderate
policy of the Executive made it possible
instrument for the maintenance of abso
for the Supreme Court to avoid this
lute freedom of competition in every
dilemma, by simply giving the act 3
branch of industry. The general terms of the statute, and its brevity, shroud
literal interpretation, and by recognizing
its actual purport in obscurity. Congress
fact without inquiring into its applica tion to more obscure and controversial matters. Under the circumstances the Court could pursue this non-committal, strict-constructionist line of action with
had only half done its work; the statute must either be declared void for uncer
tainty, with the risk-of defeating the will of the people, or it must, to be given effect, be interpretatively enlarged or completed, whether by the judges, by the executive, or by both. It is incorrect to say that the execu
it to apply to certain clear states of
out subjecting itself to any charge of
partisanship. Then, with the inauguration of Mr Roosevelt's monopoly-baiting policy,
