The Creation of the Department of Justice: Professionalization without Civil Rights or Civil Service
Shugerman, Jed Handelsman, Stanford Law Review
B. The Passage of the DOJ Act, 1870
The traditional accounts of the DOJ's creation emphasize that the Civil War had produced a wave of government litigation: cases involving treason, government revenues, confiscation, "titles to property," personal liberty, and "all the numerous litigations which can arise under the law of war." (162) More recent articles by Norman Spaulding suggested that Congress established the DOJ to enforce Reconstruction and civil rights. (163) Spaulding then presented an intriguing puzzle: why would a Republican Congress give the President and Attorney General so much power over a new law department immediately after President Andrew Johnson and Attorney General Henry Stanbery had just precipitated arguably the greatest constitutional crisis concerning executive power in American history up until that point? (164) In light of "the centralization of control over the legal work of the executive branch in the office of the Attorney General," Spaulding wondered why "no major structural reforms were established to protect the independence of the office and prevent the embarrassment of law by politics." (165) To the contrary, I suggest that the drafters of the DOJ Act believed that the creation of a department under the Attorney General was itself the structural reform that would promote professional independence by removing federal lawyers from the politicized departments and placing them under more professional leadership.
There are several problems with the conventional explanations. First, as for the interpretation that the DOJ was designed to increase the federal government's capacity to manage a growing legal caseload, the deep cut of outside counsel without replacements undermines this suggestion. It is possible that professionalizing and restructuring government lawyers might have increased efficiency, so that a smaller team of lawyers could have been more effective that the preexisting system. However, the elimination of outside counsel was no small cut. It was a deep, dramatic cut, and it sharply limited the flexibility of executive departments and even the Attorney General to respond to new legal work. It is hard to imagine that Congress was really focused on big-picture efficiency if the DOJ Act weakened the federal government's ability to enforce the new federal taxes on income, liquor, and tobacco. The "efficiency" of the DOJ Act was more of an antiwaste, anti-patronage, and downsizing reform. The DOJ Act probably produced a less efficient system, if one balances the benefits of limiting patronage against the costs of decreased law enforcement capacity and decreased tax revenue.
As for the civil rights interpretation, there is little evidence that the DOJ was intended to bolster civil rights enforcement. In the debates, congressmen made no mention of how the new department would help (or even hinder) federal law officers enforce civil rights legislation. The members of the Joint Select Committee on Retrenchment generally were unsympathetic to Reconstruction and to civil rights enforcement, and they cared much more about limiting the federal government and cutting the federal budget. Again, the details of the DOJ Act itself, in eliminating outside counsel, undercut the notion that the DOJ was meant to supply additional lawyers to prosecute Reconstruction. Moreover, it is very important to note that in the congressional debates, Republicans who supported Reconstruction did not argue that the new department would strengthen federal law enforcement in the South. Few Democrats who opposed Reconstruction raised such concerns, and the authors of the DOJ Act assured them that the new department would not cover military lawyers and would not have jurisdiction over military questions at a time when the military continued to play a significant role in the South. (166) The opposition to the bill was "largely perfunctory." (167)
One assumption in these earlier accounts has been that a new law department was designed to strengthen President Grant's power. …