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. …