unitary executive, separation of powers, executive power, United States attorneys, presidential power
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.
Driesen, David M., "Firing U.S. Attorneys: An Essay" (2008). College of Law Faculty Scholarship. 38.
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