Break Up the Presidency? Governors, State Attorneys General, and Lessons from the Divided Executive
Marshall, William P., The Yale Law Journal
ESSAY CONTENTS INTRODUCTION I. THE STATE EXPERIENCE WITH THE DIVIDED EXECUTIVE: GOVERNORS AND STATE ATTORNEYS GENERAL A. Common Law Origins of the Office of the Attorney General B. The State Attorneys General C. Governors and State Attorneys General D. The Cases Addressing the Relative Powers of Governors and Attorneys General 1. The Power of the Attorney General To Exercise Independent Legal Judgment in Litigation 2. The Power of the Attorney General To Sue the Governor or Other Executive Officers 3. The Power of the Attorney General To Initiate Enforcement Actions Against Private Parties 4. The Cases in Theoretical Perspective a. The Argument from Ethics b. The Argument from Structure E. Lessons from the Divided Executive II. AN INDEPENDENT FEDERAL ATTORNEY GENERAL? A. The Increasingly Powerful (and Unchecked) Presidency B. An Independent Federal Attorney General? 1. Energy and Efficiency 2. Accountability 3. Separation of Powers 4. Designing the Office of the Attorney General CONCLUSION
Proponents of the federal unitary executive have contended that its adoption by the Framers "swept ... plural executive forms into the ash bin of history." (1) The federal model, however, has not been embraced by the states. The states, rather, employ a divided executive that apportions executive power among different executive officers not subject to gubernatorial control. (2) In forty-eight states, for example, the Attorney General does not serve at the will of the Governor; (3) and in many states, other executive branch officers such as the Secretary of State, Treasurer, and Auditor are also independent. (4)
The divided executive holds the theoretical advantages of dispersing power and serving as a check against any particular officer's overreaching, virtues that might be seen as particularly appealing given concerns about executive branch excesses at the federal level. But the structure also potentially undermines the virtues of energy and efficiency, political accountability, and separation of powers that the Framers of the Federal Constitution associated with the unitary executive model. The question then arises as to whether the divided executive provides a viable and workable model for executive power implementation.
Focusing on the Office of the Attorney General, this Essay examines the divided executive. Part I examines the state experience. It provides a brief discussion of the history and evolution of the Office of the Attorney General, explores how the divided executive works in practice, and canvasses the cases that address how conflicts between governors and state attorneys general are resolved. Part I concludes that the divided executive model can foster an intrabranch system of checks and balances without undercutting the ability of the executive branch to function effectively. Part II then probes the question of whether the federal government should borrow from the state experience and make the Federal Attorney General an independent officer. (5) We live in an era of increasing (and, some would say, increasingly unchecked) presidential power. Part II accordingly considers whether the federal government should construct an intrabranch system of checks and balances, consistent with the state experience, in order to guard against executive branch excess.
I. THE STATE EXPERIENCE WITH THE DIVIDED EXECUTIVE: GOVERNORS AND STATE ATTORNEYS GENERAL
A. Common Law Origins of the Office of the Attorney General
The roots of the Office of the Attorney General date back to the thirteenth century, when English kings appointed attorneys to represent regal interests in each major court or geographical area. (6) Initially, the attorneys had limited powers, based either on the courts in which they appeared or the business that they were assigned to conduct. (7) During the Middle Ages, however, this practice was superseded by the appointment of a single attorney with broad authority, including the power to appoint subordinates to carry out his responsibilities. (8) The Attorney General emerged as chief legal adviser to the Crown and was often appointed for life tenure--a practice that continued until the reign of Henry VIII when it was changed to service at the pleasure of the Crown. (9)
Throughout the sixteenth and seventeenth centuries, the duties of the Attorney General continued to evolve and expand; with eminent tenants such as Edward Coke and Francis Bacon, the Office also continued to gain in prestige. (10) The Attorney General was often summoned by writ of attendance to the House of Lords where he was consulted on bills and points of law. (11) In 1673, he began to sit in the House of Commons, advising that body and assisting in the drafting of legislation. (12) He also gave legal advice to the various departments of state and appeared for them in court. (13)
Importantly, during this period, the Attorney General established that his duty of representation extended to the public interest and not just to the ministries of government. (14) In fact, by 1757, the Attorney General was able to refuse "to prosecute or to stop a prosecution on the orders of a department of the government, if he disapproved of this course of action." (15) Accordingly, the Attorney General became less the government's lawyer and more an independent public official "responsible for justice." (16)
B. The State Attorneys General
The Office of the Attorney General was brought over to the colonies, where it was modeled after its English counterpart; (17) and at the time of the founding, it existed in all thirteen of the original states. (18) The terms of tenure varied considerably. North Carolina, for example, provided for a lifetime appointment by the legislature. (19) In New York, the Attorney General was appointed by the Governor with the advice and consent of an Executive Council but he could be impeached and removed from office for "mal and corrupt conduct" only by a two-thirds vote of those present in the Assembly. (20) Delaware allowed the Governor to appoint the Attorney General, upon confirmation by the Privy Council, for a term of five years. (21) Rhode Island, alone among the original states, provided that the Attorney General would be popularly elected. (22)
The Framers of the Federal Constitution apparently placed the Attorney General under the control of the President, (23) thereby adopting the model of the unitary executive, at least insofar as they did not directly create separate federal officers independent of the President. (24) But the federal model proved to have very little influence over the development of state government. In fact, in the years following the ratification of the Federal Constitution, the states tended to reject the federal model because they were concerned with the concentration of too much power in one executive officer. Ohio, for example, in reaction to a territorial Governor who was perceived to be too autocratic, drafted its first state constitution in 1802 specifically to minimize the authority of the Governor by dispersing executive power over a range of independent executive branch officers. (25)
As the nation matured, many states created independent attorneys general and afforded the Office even greater autonomy by making it a popularly elected position. Again, the states' purpose was to weaken the power of a central chief executive and further an intrabranch system of checks and balances. Thus, the Minnesota Supreme Court observed, in reference to the state's 1851 constitution, that:
Rather than conferring all executive authority upon a governor, the drafters of our constitution divided the executive powers of state government among six elected officers. This was a conscious effort on the part of the drafters, who were well aware of the colonial aversion to royal governors who possessed unified executive powers. (26)
Accordingly, as the nineteenth century unfurled, most new states provided in their constitutions for the popular election of an attorney general (and other executive branch officials) while many of the established states amended their constitutions to the same end. As a result of this trend, at present, forty-three state attorneys general are elected and forty-eight are free from gubernatorial control. (27) Notably, no state has reversed direction and made its Attorney General subservient to the Governor. (28)
The Office of the Attorney General has now evolved to have jurisdiction over a wide range of matters, although its specific powers vary considerably from state to state. In some states, for example, the Attorney General has statutory authority to bring consumer protection, environmental, civil rights, civil fraud, securities, and antitrust actions; some offices are also charged with maintaining oversight over public lands and charitable trusts. (29) Many state attorneys general have significant authority to investigate both governmental and non-governmental misconduct. Attorneys general also play an important role in criminal law enforcement, with some state offices having direct prosecutorial powers or supervisory authority over law enforcement officers. (30) Some state attorneys general additionally have broad common law powers to sue in the name of the public interest or in parens patriae. (31) Finally, in virtually all states, the Attorney General is designated the state's chief legal officer. (32) The problem, as shall be discussed, however, is that no matter how extensive the Attorney General's powers have become, they still must be reconciled with those of the Governor, who, in virtually every state, enjoys the even more expansive charge of assuring that the laws are faithfully executed. (33)
C. Governors and State Attorneys General
Not surprisingly, a divided executive creates substantial opportunities and incentives for conflict. (34) First, there are matters of simple politics. In states where the Governor and the Attorney General are independently elected, the two officers may come from different political parties with diametrically opposed partisan agendas. If so, they can be expected to be in constant political opposition to each other. Moreover, even when from the same party, the two officers can, and often are, divided by personal rivalries or ideological differences. And even when the two officers agree on a particular issue, they may compete with each other to be the most aggressive in addressing the issue to curry favor with a particular constituency. (35) Add to this the political reality that the Office of the Attorney General has long been seen by many of its occupants as a stepping stone to the Governor's office (36) and the blueprint for confrontation and conflict is manifest. Finally, disputes may occur because of the differing visions the officers may have concerning each other's roles. Governors tend to view attorneys general as subservient officers. But most attorneys general, while acknowledging some obligation to represent the Governor and the other parts of state government, tend to perceive their overriding obligation to be to the broader concerns of representing the state, the law, and the public interest. (37)
What is remarkable, then, in reviewing the state experience, is that debilitating conflict has not materialized. This is not to say that serious disputes have never occurred or that governors have never complained about having to deal with independent attorneys general (or vice versa). Certainly they have. And it is also true that the divided executive has occasionally been the target of reforms that would make the Attorney General subject to gubernatorial appointment and removal. (38) But history suggests that both governors and attorneys general have generally learned to cooperate effectively within a divided executive framework.
The reasons why cooperation, rather than conflict, has been the rule are not complex. On one side, the Governor, even if he believes he is unduly constrained by an attorney general's position, has the general incentive to comply because he may not want to be seen as defying the Attorney General on matters for which the public expects that the Attorney General, as chief legal officer, will have greater expertise. A Governor who rejects the Attorney General's position therefore risks expending political capital by appearing reckless, if not lawless. Moreover, he risks even greater vulnerability on that point if his legal position eventually fails in court.
On the other side, the Attorney General may also be restrained from overreaching because she is aware that her role is, in large part, defined by public expectations and that her primary obligation is to defend, not contradict, the policies of state officers or agencies, except when those policies violate the law. (39) Indeed, this understanding is so prevalent that virtually all of the state attorneys general have institutionalized it in in-house memoranda. (40)
Many of the more powerful incentives for cooperation, moreover, are mutual. To begin with, as repeat and interdependent players, both sides have the incentive to maintain a functioning relationship to ensure they can fulfill the duties of their respective offices. They may also feel significant political pressure to work together because it will be harmful to both if they are seen as unwilling or unable to work across political divides. The electorate, after all, does not tend to reward those who bring government to a standstill. Further, both sides may be motivated to come together because reaching internal consensus may fortify their actions against third parties. When both the Governor and the Attorney General agree that a course of action is permissible, the authority behind that position is greater than when either party reaches that conclusion alone. Finally, and perhaps unduly idealistically, the Governor and Attorney General may be united by a common sense of duty. As one court has noted, a divided executive requires the executive officers to "combine and cooperate (even if they have differing policy views and perspectives) to provide an efficient and effective executive branch of government." (41) It may be that state governments traditionally have taken that duty seriously.
D. The Cases Addressing the Relative Powers of Governors and Attorneys General
Not all disputes between governors and attorneys general regarding their respective powers are resolved internally and some, not surprisingly, proceed to litigation. The relatively few cases addressing intra-executive branch disputes, however, are significant for our purposes in that they provide useful insight into the types of legal conflicts that can be triggered by a divided executive, how courts might approach these conflicts, and, by implication, whether a divided executive is a viable and sustainable structure. (42) These cases can be broken into three categories: (2) cases in which the Attorney General chooses to exercise independent legal judgment and either refuses to represent the Governor (or other executive officers or agencies) or takes an opposed position in litigation; (2) independent actions brought by the Attorney General directly against the Governor or other members of the executive; and (3) cases raising the issue of whether the Attorney General has the right to initiate enforcement actions against private parties without the Governor's approval or in direct contravention of the Governor's wishes. This Section first canvasses the cases within each category and then evaluates whether the approaches utilized by the courts are effective in furthering the purposes the divided executive is designed to achieve.
1. The Power of the Attorney General To Exercise Independent Legal Judgment in Litigation
The first and most common category of cases addresses the right of the Attorney General to refuse to take the Governor's (or other executive officer's or agency's) position in court. Must the Attorney General represent the position of the Governor on a disputed legal issue, or is she free to substitute her own independent legal judgment as to the best interests of the state? The majority rule favors attorney general independence. (43) Her primary