{"id":91122,"date":"2019-10-20T08:00:05","date_gmt":"2019-10-20T15:00:05","guid":{"rendered":"https:\/\/calmatters.org\/?post_type=commentary&p=91122"},"modified":"2019-10-22T17:14:37","modified_gmt":"2019-10-23T00:14:37","slug":"auto-investigation","status":"publish","type":"post","link":"https:\/\/calmatters.org\/_ko\/commentary\/2019\/10\/auto-investigation\/","title":{"rendered":"Trump\u2019s Justice Department\u2019s antitrust \u2018investigation\u2019 of California’s deal with car makers is an abuse of power"},"content":{"rendered":"
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\n\t\t\t\t\tBy Mark A. Lemley and David McGowan, Special to Calmatters\t\t\t\t<\/h3>\n\t\t\t\t

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\n\t\t\t\t\tMark A. Lemley is the William H. Neukom Professor of Law at Stanford Law School and the director of the Stanford Program in Law, Science and Technology, mlemley@law.stanford.edu. David McGowan is the Lyle L. Jones Professor of Competition and Innovation Law at the University of San Diego School of Law, dmcgowan@sandiego.edu<\/a>. They wrote this commentary for CalMatters.\t\t\t\t<\/p>\n\t\t\t\t

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Years ago, the conservative legal scholar Robert Bork criticized the view that antitrust law should not worry about economic problems but should, like a mythical small-town sheriff, just walk down the street and pistol-whip a few people every so often. <\/p>\n\n\n\n

His point was that the law should be coherent, not random. But still less should the sheriff be allowed to walk down the street and pistol whip only those who stand up to him. That is not just legal incoherence, but a perversion of the law.<\/p>\n\n\n\n

The Department of Justice appears determined to play the role of that sheriff. It has decided to investigate car manufacturers that agreed with California to establish a framework setting parameters for compliance with California\u2019s greenhouse gas emissions standards. <\/p>\n\n\n\n

The U.S. House of Representatives has decided, in turn, to investigate the investigation.  Ordinarily, that might seem like overkill, but in this case the House\u2019s action is necessary and important. <\/p>\n\n\n\n

Here\u2019s why.<\/p>\n\n\n\n

Federal antitrust law provides no basis for the Department of Justice investigation. Antitrust law aims to prevent businesses from restricting competition for their own gain. It favors practices that tend to increase productivity because those practices also increase society\u2019s wealth. Antitrust law does not aim to restrict states from governing. Antitrust law also does not stop businesses from seeking to influence government regulation. That is true even when states adopt rules that restrict competition.<\/p>\n\n\n\n

Supreme Court precedent dating to the early 1940s is clear on these points. Businesses that work with the government on regulations are immune from antitrust liability for such efforts even if they seek regulations that explicitly restrain trade. <\/p>\n\n\n\n

The U.S. Supreme Court has stated the rule so succinctly it could fit into a Tweet: <\/p>\n\n\n\n