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Friday, March 09, 2007

More on the Sacked US Attorneys

Today's story suggesting that the Attorney General may have given ground somewhat in handling the dismissal of the U.S. Attorneys gives me an opportunity to again call attention to Brian's terrific post from the other day, and to link to Mike Dorf's post today.  Brian writes that we expect a variety of executive branch officials to operate according to more disinterested norms of professionalism, and that "this episode is [thus] an effort to halt what might well be a difficult-to-reverse slide away from  norms of professionalism in federal prosecutors."  Mike writes that the episode may serve to soften "the left's too-eager embrace of Justice Scalia's solo dissent in Morrison," since the Administration's reluctance to frankly advance a unified-executive-type defense of its actions teaches us that the public would rather have prosecutors who "exercise independent, professional judgment, rather than to pursue a political agenda."

I find myself somewhat athwart the professionalism vs. unitary executive debate, and what I find interesting about both Brian and Mike's posts is that it suggests the administration is too, in some ways.  On the one hand, I favor the general principle that the President must have substantial ability to direct, and to select or deselect, those who carry out the work of the executive branch, and to advance policies or agendas that his career staff may largely disagree with.  On the other, I think the executive branch functions best when its ranks are filled with people who do observe professional norms, and who do operate in a largely disinterested and nonpolitical fashion.  We should not be entirely sanguine about these "professional" career ranks; of course they may end up becoming quietly political in their pursuit of a particular policy agenda, or quietly subversive of the administration in power, and certainly they are very capable at using the press.  But when an administration departs markedly from a model of strict professionalism in the executive ranks -- as I happen to believe this one has -- I notice it and disapprove.  As Mike suggests, so do many others.

It comes down to candor for me, I suppose.  An administration is fully entitled to seize substantial control of its own executive branch, and to argue aggressively for such a move, whether expressly on a unitary executive basis or on some other grounds.  And it is certainly entitled to dismiss U.S. Attorneys for no reason at all, or for no good reason -- and entitled to face the political heat for doing so.  This, I take it, is equally a part of the unitary executive theory: not that a unitary executive is good because all presidents are good, and not only that such a theory is necessary if presidents are to be effective, but also so that presidents can take all the blame when they are not.  To the extent that this administration has been particularly aggressive in pursuing a unitary executive approach, the corollary of this approach is that President Bush must fairly accept personal responsibility for every failing of every official in his administration, from the utter hacks ("heckuva job, Brownie!") to those well-intentioned insubordinates who nevertheless happen to fall short on a particular occasion.

Of course, administrations don't necessarily want to adopt this argument, as Mike says.  (Moreover, as Brian points out, administrations may agree to a certain level of professionalism in order to win a greater degree of delegation from Congress.)  So we had the spectacle of the past few weeks.  If you set aside allegations of politically motivated interference and assume the administration simply wanted to rotate its U.S. Attorneys or reward some of its supporters (who might themselves be well-qualified for the positions), it could have said so in so many words.  But to retain the patina of professionalism, it argued instead that the deposed U.S. Attorneys had failed on a professional level; and so the firestorm began. 

The upshot?  Like Brian, I favor for the most part the maintenance of "institutional norms" within many sectors of the executive branch -- but I do think those norms more a matter of sufferance than of right, and that the administration may choose, if it wishes, to exert a far heavier hand over its own ranks.  I agree with Mike that the public probably prefers a professional model of the executive branch (and certainly of federal attorneys) than a unitary executive model.  But the developments in this case make me less skeptical than Mike of Justice Scalia's reliance on politics as a safeguard against executive abuses.  These events showed not only that Congress has both a preference for professionalism in the executive branch, and/or a political incentive for monitoring the executive branch for lapses in that professionalism, but that the administration itself wants to sell itself as operating according to professional norms, and will come under pressure when its actual approach departs too far from a professional model.

Posted by Paul Horwitz on March 9, 2007 at 10:57 AM in Current Affairs | Permalink


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Nice post, Paul. I agree with what I take to be your main thesis, which is that there are strong incentives in place for various parties to promote norms of professionalism within the executive. And that is consistent with what we know about norm formation, in the first place.

I maybe part company to the extent that you suggest that these are reasons to avoid judicial oversight of separation-of-powers issues. But I think a lot turns on the details; if we thought political processes were *too* constraining on the executive, it's hard to think that additional judicial limitations would make sense. (That's my view of judicial protection for state finances, for instance.) Since that would likely change situationally, I don't think it's a good idea to have a single, fixed rule -- and so I'm not a "unitary executive" guy.

Posted by: BDG | Mar 12, 2007 5:17:48 PM

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