Document Type

Article

Date

2008

Embargo Period

9-21-2010

Keywords

unitary executive, separation of powers, executive power, United States attorneys, presidential power

Language

English

Disciplines

Law

Description/Abstract

This essay examines the constitutional basis for Justice Department independence, the main constitutional issue underlying the recent dismissal of United States Attorneys. It outlines a duty-based theory of executive power, a theory that Article II should be understood as a set of checks and balances to secure faithful execution of the law, rather than solely as a source of Presidential power. It shows how this theory can provide a constitutional justification for Justice Department independence. The essay reexamines the unitary executive theory which claims that the Constitution gives the President unlimited power to fire prosecutors in the context of the dismissals, showing that the theory helped justify these widely lamented actions. It argues that this widely touted theory merits reexamination in light of the dismissals and that the duty-based theory outlined here provides a textually plausible and attractive alternative.

Additional Information

Administrative Law Review, Vol. 60, No. 3, 2008

Source

Metadata from SSRN

Included in

Law Commons

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