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Rebecca Roiphe & Bruce Green: Can the President Control the Department of Justice?
Michael Ramsey

Rebecca Roiphe (New York Law School) and Bruce A. Green (Fordham University School of Law) have posted Can the President Control the Department of Justice? (Alabama Law Review, forthcoming) on SSRN. Here is the abstract:

This article addresses the question of presidential power principally from an historical perspective. It argues that the Department of Justice is independent of the President, and its decisions in individual cases and investigations are largely immune from his interference or direction. This does not result from any explicit constitutional or legislative mandate, but is rather based on an evolving understanding of prosecutorial independence and professional norms.

American democratic discourse has included the value of independent prosecutions from its inception, and scholars have debated how much this concept influenced the initial structure of American government. In the late 18th century, federal prosecutors enjoyed a significant degree of independence from the White House, both because of the diffuse local nature of federal prosecutions and the vague and overlapping lines of authority. As federal law grew in scope and complexity, there was an increased need to consolidate and rationalize the legal arm of the government. Ultimately the Department of Justice assumed this function under the executive branch. In 1870 when it created the law department, Congress was not overly concerned that partisan politics would infiltrate and undermine the rule of law, because at the time expertise, including professional norms for attorneys, were considered the ultimate protection against partisan corruption. In arguing that professional norms operated as an internal barrier between the Department of Justice and the remainder of the executive branch, this Article contributes to a growing debate about intra-branch checks and balances.

First, I say it's "a historical perspective" not "an historical perspective."  Just as it's "a hippopotamus" not "an hippopotamus."(Sorry, just a pet peeve I can't resist).

Second, more seriously, this interesting paper raises an important question encountered here before.  It's familiar view that longstanding custom can relax a constitutional requirement, especially in the separation of powers area.  This is, of course, Justice Frankfurter's concurrence in the Steel Seizure case, among many others.  But this paper's argument is that longstanding practice can create a constitutional requirement where the Constitution's text doesn't impose one.

This issue came up in the context of Judge Garland's nomination to the Supreme Court.  One of the arguments then was that, even if the Constitution itself did not impose a duty on the Senate to consider the nomination, past practice imposed such an obligation.

I doubted this was true, however (even assuming there was such a past practice) [further thoughts here].  My view was that even if practice can relax constitutional obligations, it can't create them.  That's because the relevant political actors may be behaving the way they are out of convenience, not out of a sense of legal obligation.  In the Garland situation, even if the Senate had uniformly given nominees a hearing in the past, that did not suggest anyone felt a legal obligation to do so.  In contrast, where the political actors relax a constitutional obligation, they necessarily are taking the view that as legal matter the obligation should be relaxed.

One example I gave is the two-term limit for Presidents.  This was a custom established by George Washington and followed until Franklin Roosevelt.  It was probably a good idea.  But I think few people thought it was a legal obligation.  Roosevelt's standing for a third term did not violate a constitutional obligation.  And when people wanted to make it a constitutional obligation, they amended the Constitution.  (Another example is the Senate filibuster -- again, a longstanding practice but one we generally assume could be changed).

I could not think of any examples where the Supreme Court had found a longstanding practice to create (as opposed to relax) a constitutional obligation.  I'm still looking for examples, as it seems an important point.  (A reader suggested Chief Justice Roberts' commerce clause opinion in NFIB v. Sebelius, but that seems more an interpretation of textual limitation rather than a creation of a nontextual obligation.)

So my initial reaction on this paper is that the practice does not create an obligation.  Assuming that the Constitution's original meaning is that the Department of Justice is under the President, a practice of independence from the President doesn't create a new rule; it just creates a practice -- arguably a good one -- and the decision whether to depart from that practice is a political rather than a constitutional one (until it is incorporated into a constitutional amendment).