A Government of Laws

Lee Casey and David Rivkin, in the latest of their many apologias for the Bush administration, again urge the theory of the unitary executive (Times, May 29). In this scheme of things, the Presidency is an elective dictatorship, and subordinate officers like U.S. Attorneys, once the formality of Senate confirmation is over, are removable for any reason or no reason, and Congress has no business complaining of exercises of this power. Leaving aside the deliberately sought ‘stealth’ legislation designed to relieve interim U.S. Attorneys of the requirement of Senate confirmation, and the politicization of career appointments which even Casey and Rivlin do not try to defend, there are problems with this formulation. Public officers take oaths to uphold the Constitution, not the personal oaths of Hitler’s generals. Senate confirmation, as Hamilton observed in Federalist 76 was designed to guard against officers “possessing the necessary insignificance and pliancy to render them the obsequious instruments of [the President’s] pleasure.” The unprecedented attempt to remove select U.S. Attorneys in the middle of a Presidential term to make way for apparatchiks assumed not to require Senate confirmation was objectionable because it subverts the Constitutional scheme. Public offices, contrary to Rivlin and Casey’s assumption, are as 19th century Supreme Court Justice Joseph Story said, “not for cringing favorites or court sycophants”, like our current Attorney General, but “to give dignity, strength, purity and energy to the administration of the laws.” Congress may, as it has with the Federal Reserve Board and the F.B.I. director, provide federal officers with fixed terms. It has every right to consider similar or milder guarantees for those wielding prosecutorial powers that are in essence now unlimited. We do not want prosecutors who are laws unto themselves, but still less do we want one man rule and the impairment of freedom from fear. Previous administrations have dealt with U.S. Attorneys at arm’s length. This one has not, and its actions threaten to replace constitutional with personal government.


Posted in: Efficiency in Government, Issue Brief