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Debate Club
DEBATE CLUB 2/13/06

Should the AG be independent?

William P. Marshall and Saikrishna B. Prakash debate.

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At last week's Senate hearing about the NSA's wiretapping, the most talked about testimony was given by attorney general Alberto Gonzales. As a cabinet member who reports to the president, he is expected to advocate for the legality of the Bush Administration's actions. As attorney general, he also has broad responsibility to uphold the law — whether or not it favors the executive branch. Some experts are questioning whether the AG can effectively serve both the president and the law in the wiretapping case, where many see administration policy and federal law to be at odds.
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THE UNITARY EXECUTIVE

III, II, I — Unitary Executive! The paper that introduced the idea of a unitary executive re-read the Constitution ... from bottom to top.

Should the attorney general have independence from the president, and in what circumstances?


William P. Marshall is the William R. Kenan Distinguished Professor of Law at the University of North Carolina School of Law. Saikrishna B. Prakash is the Herzog Research Professor of Law at the University of San Diego School of Law.

Marshall: 2/13/06, 07:20 AM
Sai, I'm pleased to have the chance to discuss this question with you.

To the framers, the legislature was the most dangerous branch. Accordingly, they diffused that power by bifurcating Congress. Divided in this way, the legislature would be unable to dominate the other two branches.

Things have changed. For a number of reasons, the presidency has become the most powerful branch, particularly in matters of war, national security, and foreign policy. The exigencies of the modern world have concentrated government power in the executive because only that branch can act and react with the requisite speed; media coverage has increased executive power by focusing on the visage and persona of the president; and the president has information resources and military and technological capabilities that were unimaginable in the late eighteenth century. At the same time, the ability of the courts and Congress to effectively check presidential power has lessened because they often are not in a position to review the legality of presidential action until long after it occurs (if at all) and when second guessing may not be politically feasible. The question then, following the framers' lead, is whether we should divide the executive in order to account for the modern imbalance of power?

In this respect, freeing the attorney general and the Department of Justice from presidential control may be an effective way to recalibrate the system of checks and balances. After all, in circumstances when Congress and the courts are unable to constrain the president, the only possible check on the lawful exercise of presidential power is the DOJ, which is charged with reviewing the legality of executive branch action. Unfortunately, however, as the recent surveillance and torture controversies have amply demonstrated, the DOJ is not much of a check. Nor, under its current structure, should we expect it to be. President Kennedy, for example, did not appoint his brother or President Nixon his campaign manager because they wanted an obstreperous DOJ.

The problem, however, is that when the president controls the DOJ, and Congress and the courts are out of the picture (and here we should remember that the current administration is contending the other two branches do not even have a constitutional role in checking the President's commander-in chief powers), he effectively becomes the only judge of the limits of his own authority. This is a dangerous and combustible scenario given the sheer might and technological capability that he has at his disposal. It is also one that calls out for vesting independence in the attorney general.

Prakash: 2/13/06, 12:46 PM
Bill, thanks for joining me. You make many interesting points. And I want to respond to them. But some preliminaries first. I think you and I agree that a constitutional amendment would be necessary to make the attorney general independent of the president. So the question is whether we ought to amend our Constitution. Because we are academics, we have no problem discussing wildly improbable events.

We should always be open to the possibility that current allocations of constitutional power are not ideal. But I think there is a problem with your diagnosis and your cure. Whether the president is too powerful or not is a matter of opinion, not one of fact. This president has vigorously flexed his executive-power muscles to achieve ends he believes necessary (e.g., winning the war on terrorism). But it is far from obvious that he has gone beyond his constitutional authority in any particular case. To be sure, much of the concerns expressed about President Bush reflect sincere misgivings about the effect of his policies on civil liberties and the separation of powers. Yet I don't think we are witnessing a crisis, much less a dictatorship, as some of the President's overwrought critics suggest. What many of the critics of President Bush do not seem to understand is that when the nation is at war, existing rules found in the Constitution apply somewhat differently.

Hence, unlike you, I don't really think there is a problem that needs to be fixed. But assume for argument's sake that there is a problem with the president's exercise of his executive power. Is Congress incapable of checking the president, as you seem to suggest? Hardly. Congress can conduct oversight hearings, cut funding, and cut whole programs. The president knows this and has every incentive to cooperate with Congress to make sure that he has the ability to conduct the war. But what if the president refuses to cooperate? Can't he stonewall Congress? To paraphrase Brendan Sullivan of Oliver North fame, Congress is not a potted plant. Congress could demand information, barring which they can take the steps mentioned above. If they are really angry, they can institute impeachment proceedings.

Many perceive Congress as unwilling to check this president. True enough. But that is not an institutional problem (remember all the checking that occurred during the Clinton years). The Constitution permits Congress to act as a brake on the president. It does not compel Congress to restrain the president when a majority in Congress agrees with some or all aspects of the president's agenda. It seems to me that because some people feel the president ought to be checked and that Congress is not willing to do the job, they are searching for a new curb on presidential power. They are free to do this, but their argument is based on opposition to the president's policies. It is not based on the idea that the Congress is somehow incapable of restraining the president.

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Marshall: 2/14/06, 11:58 AM
Sai, thanks for your thoughtful response. Are we in a crisis with respect to the expansion of presidential power? You say no but then go on to say we are in a war where we need to understand that different rules apply. But when have we ever been in a war that the president himself has described as being limitless in duration?

In fact, I can think of no greater proponent of the position that the constitutional balance has changed than the president, who time after time, has claimed that 9/11 changed everything and for that reason his use of extraordinary powers should not be questioned. And his Department of Justice has taken him literally, concluding that the president has the unilateral power to order unlimited detention, warrantless surveillance, and torture, if necessary, without judicial review or Congressional interference.

Your response is that the check on expansive presidential power rests with Congress. But when Congress, with bipartisan support, passed an anti-torture bill, the president signed with the caveat that he would enforce it only to the extent that it did not interfere with his inherent powers — in short, his position was that the bill provided no limits at all. And Congress, in any event, can not act without access to the information that the presidency controls.

The real issue here, however, is one of effective checks and balances, and although you state that whether the presidency is now too powerful is only "a matter of opinion," the realities of the modern presidency (as Justice Jackson foresaw in Youngstown) suggests otherwise. You do not, for example, contest the facts that changes in technology, media, and modern warfare have tended to concentrate power in the presidency. Nor do you dispute that once the president takes action, which the exigencies of the modern world often requires the president to do before Congressional consultation, it is difficult for the other branches to check his use of power after the fact. And you do not dispute my central proposition that a non-independent attorney general can not be expected to provide a meaningful check against executive branch over-reaching.

I gather that you believe the concept of an independent Attorney General is radical. But if I can plug my upcoming contribution to the Yale Separation of Powers Symposium in March, the fact is that there are independent attorneys general in 48 of the 50 states. The idea that an intra-branch system of checks and balances can be effectively fashioned is anything but unprecedented.

Prakash: 2/14/06, 06:33 PM
Bill, I think you express the thoughts of many and you express them well. Still, I am not convinced any constitutional amendment is necessary. The president said this war may last a long time. There is nothing unprecedented about this prospect. The founders were undoubtedly aware of the Hundred Years War and the Peloponnesian War. Whatever the president's wartime powers, they do not get truncated merely because the president is frank enough to say that this war will not be a quick affair.

Is the presidency more powerful than the Constitution contemplates? You think the answer is clearly yes. I think the answer is more complicated. The president is more powerful than the Constitution contemplates when it comes to war and foreign affairs. Even so, Congress has ample tools to check this. Congress decides whether to raise and support the army and navy. Congress can simply decide not to fund the wars; less dramatic, Congress can selectively defund programs that it regards as problematic or inconsistent with our nation's ideals.

On the other hand, the president is demonstrably less powerful on the domestic side. The Constitution established a unitary executive charged with law execution. Congress, through the creation of independent agencies, has fractured and distributed that law execution power. We don't have a single chief executive. We have multiple chief executives each with their own little fiefdoms. Your proposal apparently would constitutionalize what has heretofore been a death by a thousand cuts. As a matter of institutional structure, I don't think it makes sense to have mini-chief executives.

The general thrust of your argument is that Congress is helpless. This is hyperbole on your part. If Congress wanted to get the information you say it needs, it ought to hold hearings, hold people in contempt, and impeach and convict them if they don't cooperate. Its failure to do these things does not reflect a lack of institutional capacity. Rather its failure bespeaks a lack of political will. Once again, when we had divided government, no one regarded the Congress as incapable of checking President
Clinton. Congress is perfectly capable of oversight, even after the president has taken some action. There is no structural, institutional problem.

So I disagree with your claims that we find ourselves in unprecedented circumstance and that Congress is incapable of dealing with a truly renegade executive. But I'll assume for a moment that you are right about both. Tell me more about your proposal. What concretely would it do?

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Marshall: 2/15/06, 03:40 PM
Sai, once again thank you for the great response. Let us begin with where we agree. You acknowledge that the presidency has become "more powerful than the Constitution contemplates" in the areas of war and foreign affairs (and I presume you would include matters of national security). This is significant. The power to take actions in the name of national and military security and to place troops and individuals in harm's way is the most formidable and dangerous power that any government can have. Accordingly, the realization that there exists an imbalance, not contemplated by the Constitution, in favor of the president's use of those powers speaks volumes for the need for reform.

So does the manner in which those powers can be (and have been) exercised. The stark implications in the new imbalance of power become even clearer when the president asserts that he has unilateral and unreviewable authority to investigate, detain, eavesdrop upon, and interrogate individuals regardless of whether they are citizens or upon American soil. After all, if Justice Scalia is correct that the purpose of separation of powers (and to him, the unitary executive) is to preserve individual freedom, than it should be clear that the current structure is not doing its job. Protecting individual freedom is not served by a structure that would allow one person, alone, such massive ability to deny individual liberty.

Your answer is that Congress still has the ability to constrain presidential action by holding oversight hearings to gather information or cutting funding for programs that it believes are inconsistent with our nation's ideals. But Congress cannot act to check the president about matters of which it has no information and it cannot hold hearings to seek information that it does not know exists. And even when Congress is able to glean information, because the executive's information control apparatus has somehow failed, it faces the administration's contention, as in the case of the anti-torture bill, that it has no power to act because the president's commander-in-chief power is absolute. So we are left with the option of cutting appropriations. But exactly how would that work? And, more importantly, would the president be constrained by such an appropriations measure? If so, then I assume you believe that the Reagan Administration violated the law in rejecting the limitations of the Boland Amendment? And as a political reality, isn't it unrealistic, in any event, to assume that Congress can de-fund operations the president claims are necessary for war?

My proposal is a simple one. Vest the attorney general with sufficient independence so that he does not view the president as his "client," as AG Gonzales recently characterized his role, or see the position as one devoted to "partisan advocacy," as Robert Jackson once explained. The attorney general's charge should be to defend the constitution and the rule of law. A non-independent attorney general cannot be expected to fulfill this function.

Prakash: 2/15/06, 06:33 PM
Bill, I'd like to hear much more about your proposal. Making the attorney general independent, by itself, doesn't accomplish much. Nothing in the Constitution requires the president to listen to the attorney general. Are you envisioning that whenever there is a question about what a statute or regulation means, that the attorney general answers it for the entire executive branch? For your proposal to make sense, you must be suggesting a rather radical departure from the status quo. So tell us the content of your proposal.

As for our agreement: I don't want to disappoint you, but I think you misunderstood my view. I said that the president has more powers in war and foreign affairs than the Constitution contemplated. I never said that things were out of "balance" (whatever that means). As you know, people ignore the original Constitution in many different ways. Each time it is ignored there is not necessarily some action that must be taken to restore a "balance." I don't see you proposing an amendment to check a Congress that has stripped away the president's power over law execution. Presumably you haven't proposed such an amendment because you like what has happened — you like the new "balance". Likewise, other people are free to make the same conclusion about the president's increased role in war and foreign affairs. And, of course, even if some people think a corrective is in order, they may very well think your cure is much worse than the disease.

One of your central points is that the president claims that his authority is unreviewable. I don't see how this matters. We should not be surprised that presidents say self-serving things. Who doesn't? Congress and the judiciary have never been shy about disagreeing with the president. President Nixon said his claim of executive privilege could not be reviewed by the Supreme Court. We know who won that dispute.

Another central point of your argument is that the president won't give up the information needed to judge whether he has abused his authority. People always resist giving up information. There is nothing new under the sun (George Washington did this over 200 years ago). If Congress wants the information badly enough, it will take the measures needed to get it. Its unwillingness to do so is not an occasion calling for a constitutional amendment.

The ultimate question is whether Congress can check the president. The Clinton years give us the answer — yes, emphatically so. Nothing has happened since then that changes the answer. You have mistaken a desire not to fight a fellow Republican as an indication that Congress is feckless. We don't amend the Constitution merely because we are upset with the president's policies and frustrated by a Congress that has many members who agree with the president.

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