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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,