Posted by: bridget | 6 February 2007

Separation of Powers & the Justice Dep’t

Recently, seven US Attorneys were fired or forced to resign. Deputy Attorney General Paul J. McNulty testified before the Senate, stating that the firings were not political and are not aimed at circumventing the power of the Senate to approve new attorneys.

According to the DOJ’s website: “The Judiciary Act of 1789, ch. 20, sec. 35, 1 Stat. 73, 92-93 (1789) created the Office of the Attorney General. Originally a one-person part-time position, the Attorney General was to be ‘learned in the law’ with the duty ‘to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and to give his advice and opinion upon questions of law when required by the President of the United States, or when requested by the heads of any of the departments, touching any matters that may concern their departments.'”

Attorneys lack the protections of judges, although they are appointed in a similar manner: “United States Attorneys are appointed by, and serve at the discretion of, the President of the United States, with the advice and consent of the United States Senate.” If there is a vacancy, the Attorney General may appoint a temporary replacement:

  • “(a) Except as provided in subsection (b), the Attorney General may appoint a United States attorney for the district in which the office of United States attorney is vacant.
  • (b) The Attorney General shall not appoint as United States attorney a person to whose appointment by the President to that office the Senate refused to give advice and consent….”

 

Art. II requires that the President appoint, by and with consent of the Senate, all other officers of the United States. Note that the Patriot Act amended sections (c) and (d), so that the appointees may continue to serve until the end of the President’s term. That is at issue here. Mr. McNulty’s detractors claim that the firings were intended to circumvent the appointment process and hire US Attorneys without the consent of the Senate.

Ultimately, this is a separation of powers issue. The President, as the Executive entrusted with enforcing the laws of the nation, has authority over the US Attorneys, who help him to execute the laws of the nation. Former provisions (c) and (d) gave the judiciary power over Art. II matters that are explicitly delegated to the President and the Senate. It would be just as inappropriate for the House of Representatives to determine AG nominations. Furthermore, there is a constitutional difference between the ability of the Senate to influence the hiring of an officer and the firing of an officer. The governing statute is explicit: AGs, as the arm of the Executive, serve at his discretion. To not allow the President – or his officers – to remove attorneys who are not suitable is to undermine both the power of the Executive and the basic principle of separation of powers.  AGs do not do the work of the Senate nor Art. III courts; they are the arm of the President.

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Responses

  1. I believe the United States Attorneys should be appointed by the Supreme Court Justices and not by the President of the United States; as not to give rise to a dictator nor give him the tools to enforce his policies’. The President knows nothing about Law and the Executive Branch should be separate from the Judicial Branch. The President should have the right to select the head of the US Attorney General Branch; since it is a cabinet post, but the Federal State Attorney Generals should be selected by the Supreme Court and serve them for a period of four years and continue to serve, as long as their performance meets the Supreme Court standards, if not, then the can be fired. This will prevent a dictator from controlling the Federal Government and taking over our Country, by appointing his own people to control State function and laws. The Supreme Court is in a better position to know which AG is doing a better job of representing our Government, than the President and therefore should have the power to appoint or dismiss them.

    “The Attorney General was to be ‘learned in the law’ with the duty ‘to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned.”

    The above statement squarely puts the structure of the AG under the auspices of the Supreme Court and at its behest, not that of the President’s. The AG’s are the Supreme Court’s interface with State’s AG’s, to enforce the Supreme Court’s decisions, regarding Federal Laws and the President shouldn’t be given the ability to upsurge the Supreme Courts authority to
    govern this land. This is like an open sore on the face of democracy, waiting for it to fester and burst upon our people, with detrimental effects of tyranny and injustice, with the President being the head pimple popper.

    dr burke

  2. Clearly the Office of the Attorney General was created to prosecute and conduct all suits in the Supreme Court and not at the behest of the President’s beck and call.  We can not afford to have the President controlling State laws, by shaking the AG tree to enforce those laws he see fit to enforce and not others.  This biases Federal laws, that supersede State laws and unduly influence our State legislative bodies, to pass laws favoring those bias Federal laws, that the President has influence and not the Supreme Court.  And by doing so, those laws influenced by the President; eventually end up in the Supreme Court, who must waste their time trying to correct a previous Presidents meddling in judicial matters.  There is a judicial feedback loop here that shouldn’t be and it is wasting our judicial time, trying to resolve a legal problem that shouldn’t have occurred in the first place, had the President not had any control over State AG’s.  dr burke/07 

  3. Clearly the Office of the Attorney General was created to prosecute and conduct all suits in the Supreme Court and not at the behest of the President’s beck and call.  We can not afford to have the President controlling State laws, by shaking the AG tree to enforce those laws he see fit to enforce and not others.  This biases Federal laws, that supersede State laws and unduly influence our State legislative bodies, to pass laws favoring those bias Federal laws, that the President has influence and not the Supreme Court.  And by doing so, those laws influenced by the President; eventually end up in the Supreme Court, who must waste their time trying to correct a previous President’s meddling in judicial matters.  There is a judicial feedback loop here; that shouldn’t be and it is wasting the Supreme Court judicial time, trying to resolve a legal problem that shouldn’t have occurred in the first place, had the President not had any control over State AG’s. 

  4. Thank you for stopping by and taking the time to comment, Dr. Burke.

    I could not disagree more with your conception of the separation of powers. Your system would give us nine dictators, all in black robes.

    Clearly the Office of the Attorney General was created to prosecute and conduct all suits in the Supreme Court and not at the behest of the President’s beck and call.

    The Executive is charged with upholding the laws of the land. How is he supposed to do that without AGs? Is he just supposed to hope that everyone plays nice?

    We can not afford to have the President controlling State laws, by shaking the AG tree to enforce those laws he see fit to enforce and not others. This biases Federal laws, that supersede State laws and unduly influence our State legislative bodies, to pass laws favoring those bias Federal laws, that the President has influence and not the Supreme Court.

    WRONG. First of all, the federal Attorneys General have NO jurisdiction over the prosecution of state laws. States have their own prosecutors. If all 93 Attorneys Generals were fired tomorrow, you would still be prosecuted for theft, arson, rape, murder, or drug possession. The Executive is forbidden from enforcing state laws, much as state prosecutors cannot bring suits for federal laws (i.e. patent, maritime, aviation, or other issues).

    The system you want is the Inquisition. The judges and the prosecutors would be the same group, with one beholden to the other.

    Currently, if people don’t like how AGs do their jobs, they can pressure the President, an elected official, to get rid of them. Your system would ensure that no amount of public pressure could cause malfeasous Attorneys General to be removed, no matter how egregious their conduct.

    “The Attorney General was to be ‘learned in the law’ with the duty ‘to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned.”

    The above statement squarely puts the structure of the AG under the auspices of the Supreme Court and at its behest, not that of the President’s.

    WRONG. Frighteningly wrong. Again, that would presume that the judge and the prosecutor should be the same entity, which is how kangaroo courts happen. The judiciary is not designed to decide which cases to bring forth or which laws to prosecute; such gives them total control over the entire judicial system. Imagine if someone were to commit a tort against you. Under your system, you would be prevented from bringing an action against him; your fate would be in the hands of the judges, who could decide to ignore you in favour of your opponent.

    If the judiciary finds a case to be absurd, it can not hear it, dismiss it with prejudice, or rule against the party who brought the case. It need not have one party by the throat in order to do so. Did you miss the memo that the judiciary is supposed to be unbiased?

    regarding Federal Laws and the President shouldn’t be given the ability to upsurge the Supreme Courts authority to
    govern this land.
    governing authority? Are you being sarcastic or have you just never read the Constitution? The judiciary is explicitly NOT designed to govern.

    The Supreme Court is in a better position to know which AG is doing a better job of representing our Government, than the President and therefore should have the power to appoint or dismiss them.

    Objectively untrue. Attorneys General represent the President. Your theory is like saying that the Egyptians have a better idea of who should represent us abroad, so Americans should not be allowed to vote in elections, but rather, only non-citizens and nationals of other countries should be allowed to vote.

    It is not the job of the judicial branch to enforce laws. It has neither sword nor purse; you would give it both. It is certainly NOT the job of the Supreme Court to determine state law, nor is such the duty of Attorneys General.

    While I do thank you for visiting and taking the time to write your thoughts, I am truly frightened by your ideas for reform. It would be a nasty, brutal, and short end to our freedoms and our country. A biased judiciary? An executive branch that is not allowed to enforce laws? A judicial branch that is both inquisitor and judge? Frankly, sir, I would rather die than live under that system. Please read the Constitution and understand its structure before propounding a murderous, dictatorial system.

    “If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” ~James Madison, the Federalist, #51.

    Robes and gavels do not angels make.

    http://www.constitution.org/fed/federa51.htm


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