Appointing State Attorneys General: Evaluating the Unbundled State Executive

Harvard Law Review, January 2014 | Go to article overview

Appointing State Attorneys General: Evaluating the Unbundled State Executive


"[A]t some point this series of watchdogs-watching-watchdogs-watch administrators has to terminate in the people being their own watchdog. They may just as well watch the governor directly...." (1)

Imagine if in 2012 Americans had been faced with the question of whether to reelect not only President Barack Obama, but also Secretary of State Hillary Rodham Clinton, Attorney General Eric Holder, and Secretary of the Treasury Timothy Geithner. Would voters and the media have paid sufficient attention to each election? Would voters be skilled at evaluating candidate qualifications and incumbent performance? Even if the American people were well informed in casting their votes for several cabinet officials, a second set of questions arises: Would campaigning and electoral accountability result in better performance by the officials? Would the executive branch as a whole function more smoothly or would it be more fractured?

While scholars have extensively discussed the above questions in debates regarding the wisdom of a single elected federal executive, (2) for many years there has been virtually no discussion in legal scholarship regarding the wisdom of electing multiple state executives. (3) Across the United States, voters face statewide election ballots that are substantially longer than their federal counterparts; indeed, states hold elections for an average of 6.7 state executive offices. (4) While a broad political science argument could be made in favor of or against a completely unified state executive, this Note focuses solely on the selection of state attorneys general because of the position's discretionary authority, broad enforcement power, and special expertise. (5) In forty-three states the attorney general is directly elected. (6) Only five states employ a gubernatorial-appointment process. (7) Through a focused discussion on the implications of unified executive arguments for the selection of the state attorney general, this Note concludes that direct election of a state attorney general, (8) while beneficial in certain respects, overall undermines an informed electorate, executive accountability, and executive branch coordination.

This Note proceeds in three parts. Part I summarizes common arguments made for and against a unitary executive at the national level. Part II introduces the status of the state attorney general in America today--the typical powers and duties of the state attorney general and the attorney general selection processes in the several states. Part III presents the central analysis of this Note. This Part applies different arguments for and against a unitary executive to the state attorney general. Specifically, Part III focuses on the implications of voter information, current campaign considerations, conflicts of interest, executive branch relations, and potential future campaigns for the current election system. Ultimately, this Note suggests that more states should adopt the federal model--currently used in five states--of executive nomination, legislative confirmation, and executive removal power. (9)

I. THE UNITARY EXECUTIVE DEBATE

Before discussing the arguments in favor of and against the unitary executive, the terminology of the debate should be clarified. A unitary executive system is one in which a single official presides over the entire executive branch. The United States federal government operates under a unitary executive system. A plural executive system, in its purest form, would feature multiple executives with concurrent authority, operating by committee. A middle path, followed by most states, is the "unbundled executive" system. (10) An unbundled executive regime has multiple executive officials with nonoverlapping authority. In these states, while governors have general executive authority, there are separate, directly elected executive officials, such as attorneys general, secretaries of state, and treasurers, who have their own discrete authority and are not subordinate to the governor.

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Appointing State Attorneys General: Evaluating the Unbundled State Executive
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