U.S. Antitrust Criminal Prosecutions Are Unconstitutional

Roxann Henry argues that the current criminal enforcement initiatives of the US Department of Justice Antitrust Division are taking it into territory that will likely trigger constitutional scrutiny of the criminal use of the Sherman Act. Review by the Supreme Court would likely eliminate criminal antitrust enforcement powers given the void-for-vagueness doctrine and the constitutional guarantees of due process, separation of powers and the right to a jury trial, and, even if some aspect of criminal enforcement power was retained, the constitutional scrutiny would lead to the abandonment of the per se standard in the context of criminal trials.  Moreover, the loss of criminal enforcement of the antitrust laws would have no meaningful effect on antitrust compliance.

By Roxann E. Henry^[1]

Current initiatives of the U.S. Department of Justice Antitrust Division (“Antitrust Division” or “Division”) invite scrutiny of the constitutionality of criminal prosecutions under Sections One and Two of the Sherman Act.^[2] Constitutional challenges are becoming routine, and should they reach the Supreme Court, it is highly likely that such challenges will be successful. The result would be to deprive the Antitrust Division of any criminal enforcement powers under the antitrust laws with little other effect.

Below I note key points of the Antitrust Division’s new enforcement initiatives then briefly explain the fundamental constitutional principles at stake: the due