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The Early Role of the Attorney General in Our Constitutional Scheme: in the Beginning There Was Pragmatism

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Georgetown University Law Center Scholarship @ GEORGETOWN LAW 1989 The Early Role of the Attorney General In Our Constitutional Scheme: In the Beginning There Was Pragmatism Susan Low Bloch Georgetown University Law Center, [email protected] This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/1204 1989 Duke L.J. 561-653 This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub Part of the Constitutional Law Commons, Courts Commons, and the Law Enforcement and Corrections Commons THE EARLY ROLE OF THE ATTORNEY GENERAL IN OUR CONSTITUTIONAL SCHEME: IN THE BEGINNING THERE WAS PRAGMATISM SUSAN LOW BLOCH* INTRODUCTION The Office of the Attorney General, created by the First Congress in the Judiciary Act of 1789,1 occupies a unique position in our tripartite government. Empowered by Congress, appointed by the President, and required to answer to the judiciary, the Attorney General serves "three masters"2 and often faces a confluence of forces that produces difficult separation of powers issues. Responsible for representing the "interests of the United States,"3 the Attorney General may be pulled in conflicting directions if Congress and the President disagree on the nature of those interests. Occasionally, a frustrated or overwhelmed Attorney General has written an anecdotal article about the complexities of the office, 4 but few • Professor, Georgetown University Law Center; J.D., Ph.D., M.A., University of Michigan; B.A., Smith College. I am very grateful to Professor Maeva Marcus, Director of the Documentary History Project of the Supreme Court, for her informative seminar that both alerted me to the Iredell papers and helped me immerse myself in the history of the 1790s. I am also indebted to Charlene Bickford, Director of the Documentary History of the First Congress, for her guidance and generous access to her valuable collection. Without these two invaluable, exciting documentary his­ tories and their able leaders, this article could not have been written. I also want to thank my generous colleagues Richard Bloch, Daniel Ernst, Vicki Jackson, L. Michael Seidman, Girardeau Spann, and Mark Tushnet for their valuable help in reading earlier drafts and my research assistants Katherine Harrison, Samia Rodriguez, Jeffrey Eichen, Michael Heafey, and Keith Donahoe for their helpful research. Finally, I am grateful to the Georgetown University Law Center for its generous research grant. I. An Act to Establish the Judicial Courts of the United States, ch. 20, § 35, 1 Stat. 73, 92-93 (1789) [hereinafter The Judiciary Act of 1789]. 2. Huston, History of the Office ofthe Attorney General, in L. HUSTON, A. MILLER, S. KRIS­ LOV, & R. DIXON, ROLES OF THE ATIORNEY GENERAL IN THE UNITED STATES 3 (1968). 3. 28 u.s.c. §§ 517, 518 (1982). 4. See, e.g., F. BIDDLE, IN BRIEF AUTHORITY 174-366 (1962) (memoirs of Francis Biddle, Attorney General from September 1941-June 1945); Bell, Office of Attorney General's Client Rela­ tionship, 36 Bus. LAW. 791 (1981) (speech by Griffin B. Bell, Attorney General from January 1977 to December 1979); Bell, The Attorney General: The Federal Government's Chief Lawyer and Chief Litigator, or One Among Many?, 46 FoRDHAM L. REV. 1049 (1978) (Attorney General Bell offering some "tentative views" on the office's proper role in American system); Clark, Reminiscences of an Attorney General Turned Associate Justice, 6 Hous. L. REv. 623 (1969) (reminiscences of Tom C. Clark, Attorney General from 1945 to 1949); Stark, When the Government Goes to Court, Who 561 562 DUKE LAW JOURNAL [Vol. 1989:561 systematic analyses of this position have been attempted.5 On the eve of the two-hundredth birthday of the office, it is time to examine the com­ plex separation of powers questions surrounding the office: What is the role of Congress in defining the duties of the Attorney General; to what extent can Congress control the Attorney General's decisions on litiga­ tion strategy; to what extent must the President have unfettered control of the Attorney General and law enforcement generally? These issues are not new. Questions concerning authority over the Attorney General and law enforcement arose both in the First Congress's debates and in the Supreme Court's early encounters with the Attorney General. Unfortunately, however, modern efforts to answer these ques­ tions make too little use of the history that can inform and guide. In two recent cases, the Supreme Court confronted questions that turned on an interpretation of the role of the Attorney General and, in both cases, the Court could have benefited from a better understanding of the historical background. In United States v. Providence Journal, the Supreme Court had to interpret the modern incarnation of section 35 of the Judiciary Act of 1789.6 The majority approached the statute as if it had been writ­ ten yesterday, wholly ignoring its origins and long history.7 Similarly, in Should Speak for Uncle Sam?, 12 NAT'L J. 1098, (1980) (conflict concerning litigation responsibili· ties of Justice Department and agencies not resolved); Tyler, The Attorney General of the United States-Counsel to the President or to the Government?, 45 ALB. L. REv. 1 (1980); cf. Babcock, Role Can Be Ambiguous, Retiring Justice Aide Says, Wash. Star, June 29, 1979, at A3, col. 1 (Assistant Attorney General, Civil Division). 5. Former Attorney General Homer Cummings and Special Assistant Carl McFarland wrote the classic study of the office of the Attorney General, H. CUMMINGS & C. McFARLAND, FEDERAL JU5TICE (1937). See also J. EASBY-SMITH, THE DEPARTMENT OF JUSTICE: ITS HISTORY AND FUNCTIONS (1904); D. MEADOR, THE PRESIDENT, THE ATTORNEY GENERAL, AND THE DEPART· MENT OF JUsTICE 3-18, :i6-27, (1980); L. HUSTON, A. MILLER, S. KRISTOV, R. DIXON, ROLES OF THE ATTORNEY GENERAL (1968); Hightower, From "Attornatus" to the Department ofJustice-an Historical Perspective ofthe Nature ofthe Attorney Generalship of the United States as Embodied in the Department of Justice Act of 1870, reprinted in Removing Politics from the Administration of Justice: Hearings on S. 2803 and S. 2978 Before the Subcomm. on Separation ofPowers of the Senate Comm. on the Judiciary, 93d Cong., 2d Sess. 405-20 (1974) (chronology of historical roots of Attor­ ney Generalship in English precedent, colonial experience, Constitution, Judiciary Act of 1789, and the evolution from office to department 1789-1870); Key, The Legal Work of the Federal Govern· ment, 25 VA. L. REV. 165 (1938) (history of then-current reforms aiming at the most efficient method of handling government litigation-consolidation under Attorney General); Learned, The Attorney General and the Cabinet, 24 PoL. Sci. Q. 444 (1909) (historical development of Office of Attorney General); Nealon, The Opinion Function of the Federal Attomey General, 25 N.Y.U. L. REv. 825 (1950) (describing Attorney General's role as advising President and Executive Branch on legality and constitutionality of their actions); Comment, The Confrontation of the Legislative and Executive Branches: An Examination of the Constitutional Balance of Powers and the Role of the Attorney General, 11 PEPPERDINE L. REv. 331 (1984) (legislative reform needed to prevent undue attachments of the Attorney General to the President and the Executive Branch). 6. 485 u.s. 693 (1!188). 7. Having previously decided in Young v. United States ex rei. Vuitton et Fils, S.A., ~81 U.S. 787 (1987), that the judiciary could appoint private attorneys to prosecute criminal contempt of Vol. 1989:561] HISTORY OF THE ATTORNEY GENERAL 563 Morrison v. Olson, the Supreme Court faced the question of the constitu­ tionality of Congress's creation of special prosecutors and the restrictions imposed thereby on the President's and Attorney General's control over law enforcement. 8 Again, the Court's analysis was too little informed by history.9 It is not that these early experiences would necessarily answer to­ day's questions. Indeed, one of the most important contributions that a study of this history offers is precisely the point that, from the start of this Republic, these questions were present and their answers uncertain. Originalists who believe the answers to today's questions are to be found in the framers' intent and the words they chose are mistaken.10 There are no clear lines now because there were n?ne then. But while history cannot provide definitive answers, it offers an in­ structive approach to constitutional interpretation. The framers of the Constitution and the early legislators understood they were creating­ "constituting"-a dynamic organism. They created a unitary Presi­ dency, but did not mandate complete presidential control over all admin­ istrative offices that Congress might establish. Their approach to questions of control was neither rigid nor doctrinaire. On the contrary, it was remarkably subtle and pragmatic. The simplified model of separa­ tion of powers assumed by many modem discussants misses the nuances the framers and early legislators appreciated. This Article attempts to accomplish two distinct but related objec­ tives. First, it initiates the proposed systematic study of the Office of the Attorney General by examining its early role. Second, it explores how these early experiences help to answer today's questions. To those ends, Part I examines the establishment of the Office of the Attorney General. Studying the genesis of the office and contrasting it to the other signifi­ cant offices created by the First Congress, such as the Secretaries of For­ eign Affairs, War, and Treasury, reveals the priorities and concerns of court, the Supreme Court in Providence Journal had to explore the extent to which these special prosecutors could operate independently of the Attorney General. See infra notes 202-14 and ac­ companying text.
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