Lawmakers are about to undertake their first major antitrust hearing in 50 years. They should make Silicon Valley squirm
In the last decision of the 2019-2020 supreme court term, Trump v Mazars, John Roberts outdid himself in being John Roberts. He authored a 7-2 decision in which he appears to stand up against Donald Trump’s lawlessness, by clarifying that Congress can issue subpoenas for Trump financial documents. However, the congressional power is constrained by a new, vague, four-part test for courts to use in approving subpoenas for presidential documents. Roberts grandly reaffirmed congressional power to investigate the executive branch in theory, while making it harder in practice. He presented himself as the sober, rule-of-law judge, calling balls and strikes in the childish conflict between Congress and the executive branch – while giving himself more power.
Yet there’s one big silver lining in Mazars: while shifting power from Congress to the courts in executive branch investigations, it gave Congress a huge green light for investigations into big corporations. According to the logic of the opinion, Congress is at the peak of its power when investigating economic behavior in service of prospective legislation.
Will the big tech leaders dictate the terms of engagement, or will Congress?
Do we cede more power to the monopolists, or does Congress make clear who is in charge?
Zephyr Teachout is an associate professor at Fordham Law School and the author of Break ’Em Up: Recovering Our Freedom from Big Ag, Big Tech, and Big Money, coming 28 July
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