# Time to end the unitary executive? **URL:** \ **Category:** Great Debates\ **Created:** [June 11, 2017, 9:33pm UTC](https://boards.straightdope.com/t/time-to-end-the-unitary-executive/788726 "2017-06-11T21:33:45Z")\ **Posts on this page:** 13\ **Page:** 1
**Author:** ![friedo](https://avatars.discourse-cdn.com/v4/letter/f/8edcca/32.png) [@friedo](https://boards.straightdope.com/u/friedo)\ **Post date:** [June 11, 2017, 9:33pm UTC](https://boards.straightdope.com/t/time-to-end-the-unitary-executive/788726/1 "2017-06-11T21:33:45Z")
It seems there’s a constant struggle in the United States with regard to the separation of the investigatory machinery of the DOJ and the political shenanigans of the presidency. Ultimately, the President is the boss of everyone at every executive department and can fire any political appointees in them at will, and give them orders which while they may be lawful can be detrimental to the interests of justice. 45 out of 50 state governments have some sort of split executive branch with an Attorney General who is a separate constitutional officer independent of the governor and not appointed by them. In 43 of those, the AG is directly elected. The other two are Maine, whose AG is appointed by the legislature, and Tennessee, whose AG is elected by the Supreme Court. This makes the federal government very unusual in retaining a unitary executive structure. So, I propose that we have an independent, elected federal attorney general. The mechanism of election is immaterial; they could be directly elected or run on the same EC ticket with the presidential and vice presidential candidates - whatever floats your boat. This would require a Constitutional amendment, so here’s what I came up with. > [@The friedo Amendment](#): > > § 1. The power to investigate and prosecute crimes and offenses against the United States shall be vested in the Attorney General. > > § 2. The Attorney General shall be elected by [insert your preferred method here.] > > § 3. The Attorney General shall nominate, and by and with the advice and consent of the Senate, shall appoint prosecutors, investigators, and other necessary officers of the United States, which offices shall be established by law as inferior to the Attorney General. The Congress may by law vest the appointment of such inferior officers as they think proper in the Attorney General alone. > > § 4. Whenever there is a vacancy in the office of the Attorney General, the President shall nominate an Attorney General who shall take office upon confirmation by a majority vote of both Houses of Congress. > > § 5. Whenever there is a vacancy of the office of Vice President, the Attorney General shall serve as Acting Vice President. > > § 6. In case of the removal of the President from office or of his death or resignation, if there is a vacancy in the office of Vice President, the Attorney General shall become President. > > _ **BONUS FUN SECTION** _ > > § 7. The Executive Council of the United States shall consist of the President, Vice President, and Attorney General. Any powers which Congress may by law vest in the President alone may instead be vested by law in the Executive Council, which shall exercise such powers by majority vote. Practical considerations: In the unlikely event that any Constitutional amendment could be ratified in today’s political climate, this one would essentially require Congress to do some minor reorganizing the executive branch. The DOJ is already under the control of the AG, but certain law enforcement agencies in other departments like DHS would need to be moved around or their law enforcement organs transferred to other agencies. The advisory and policy functions of the DOJ would need to be placed elsewhere, probably within the White House itself. I’m unsure what to do with the Solicitor General. The Executive Council bit is just for considering fun hypotheticals and adding a wrinkle to Clancy-esque political thrillers. What powers should Congress give it? I dunno. ---
**Author:** ![Wesley\_Clark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wesley_clark/32/20581_2.png) [@Wesley\_Clark](https://boards.straightdope.com/u/Wesley_Clark)\ **Post date:** [June 11, 2017, 9:58pm UTC](https://boards.straightdope.com/t/time-to-end-the-unitary-executive/788726/2 "2017-06-11T21:58:13Z")
I can see your point, but other than Trump and Nixon has having the AG and Justice department being part of the executive caused problems? Also what is to stop an AG from covering for a president of the same party, even if he is elected in a separate election? The legislature is elected separately from the president but they are doing a good job of covering up for, making excuses for and refusing to investigate the president’s potential crimes because the president is of the same party. ---
**Author:** ![friedo](https://avatars.discourse-cdn.com/v4/letter/f/8edcca/32.png) [@friedo](https://boards.straightdope.com/u/friedo)\ **Post date:** [June 11, 2017, 10:25pm UTC](https://boards.straightdope.com/t/time-to-end-the-unitary-executive/788726/3 "2017-06-11T22:25:57Z")
> [@Wesley\_Clark](#): > > I can see your point, but other than Trump and Nixon has having the AG and Justice department being part of the executive caused problems? Those are the big cases, but there has always been some political interference in the justice system. There was the district attorney firing scandal under GWB, there was the potentially inappropriate politicking of the H. Clinton email investigation by AG Loretta Lynch, the “Fast and Furious” scandal under Obama, and countless others. > [@](#): > > Also what is to stop an AG from covering for a president of the same party, even if he is elected in a separate election? Nothing, of course, but it makes it easier for an honest AG to work independently. And they can protect themselves by delegating politically sensitive investigations to professional investigators who can’t be fired by the President. And of course they would be answerable to Congressional oversight as much as any other part of the executive branch, and subject to impeachment and removal by Congress. ---
**Author:** ![OldGuy](https://avatars.discourse-cdn.com/v4/letter/o/3bc359/32.png) [@OldGuy](https://boards.straightdope.com/u/OldGuy)\ **Post date:** [June 11, 2017, 10:45pm UTC](https://boards.straightdope.com/t/time-to-end-the-unitary-executive/788726/4 "2017-06-11T22:45:20Z")
> [@friedo](#): > > This makes the federal government very unusual in retaining a unitary executive structure. So, I propose that we have an independent, elected federal attorney general. The mechanism of election is immaterial; they could be directly elected or run on the same EC ticket with the presidential and vice presidential candidates - whatever floats your boat. > > This would require a Constitutional amendment, so here’s what I came up with. I don’t see why it would take an Amendment. The Cabinet positions were established by law. In particular the position of Attorney General was established on Sept. 24, 1789. The Postmaster General’s position in the Cabinet was eliminated without an Amendment. ---
**Author:** ![friedo](https://avatars.discourse-cdn.com/v4/letter/f/8edcca/32.png) [@friedo](https://boards.straightdope.com/u/friedo)\ **Post date:** [June 11, 2017, 11:26pm UTC](https://boards.straightdope.com/t/time-to-end-the-unitary-executive/788726/5 "2017-06-11T23:26:57Z")
> [@OldGuy](#): > > I don’t see why it would take an Amendment. The Cabinet positions were established by law. In particular the position of Attorney General was established on Sept. 24, 1789. The Postmaster General’s position in the Cabinet was eliminated without an Amendment. It would require an amendment because there is currently no mechanism to elect executive officers aside from the president and the VP, and the Constitution explicitly vests “the executive power” in the President. (“The executive power” includes law enforcement. And delivering the mail.) Precisely how the executive branch is organized is up to Congress; they create the departments and agencies and the Senate approves nominees. But the point here is to sever the subordinate relationship of the Attorney General to the President and make him an equal Constitutional officer independent from the presidency. Doing that necessitates carving out law enforcement from “the executive power” which is a Constitutional issue. ---
**Author:** ![TheSeaOtter](https://avatars.discourse-cdn.com/v4/letter/t/ed655f/32.png) [@TheSeaOtter](https://boards.straightdope.com/u/TheSeaOtter)\ **Post date:** [June 12, 2017, 3:27am UTC](https://boards.straightdope.com/t/time-to-end-the-unitary-executive/788726/6 "2017-06-12T03:27:59Z")
It seems like having the President and AG be of different parties, neither with any real power over the other, would make for some weird situations. For instance, Congress passes a law, the President signs it, and then the AG announces she doesn’t like it and so it’s not going to be enforced, and that they won’t defend it if it’s challenged in the courts. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [June 12, 2017, 3:50am UTC](https://boards.straightdope.com/t/time-to-end-the-unitary-executive/788726/7 "2017-06-12T03:50:54Z")
Trump is a passing anomaly. I just don’t feel the need to change our government because of him. If there is a legitimate need to change the government, I’m all ears. But “because Trump” doesn’t do it for me. ---
**Author:** ![friedo](https://avatars.discourse-cdn.com/v4/letter/f/8edcca/32.png) [@friedo](https://boards.straightdope.com/u/friedo)\ **Post date:** [June 12, 2017, 12:52pm UTC](https://boards.straightdope.com/t/time-to-end-the-unitary-executive/788726/8 "2017-06-12T12:52:38Z")
> [@TheSeaOtter](#): > > It seems like having the President and AG be of different parties, neither with any real power over the other, would make for some weird situations. > > For instance, Congress passes a law, the President signs it, and then the AG announces she doesn’t like it and so it’s not going to be enforced, and that they won’t defend it if it’s challenged in the courts. Prosecutors have always had fairly wide discretion in choosing what enforcement actions to prioritize. But in the case of simply refusing outright to do his job, the AG would be subject to impeachment by the same people who wrote that law, just like any other federal officer. > [@John\_Mace](#): > > Trump is a passing anomaly. I just don’t feel the need to change our government because of him. If there is a legitimate need to change the government, I’m all ears. But “because Trump” doesn’t do it for me. I never said “because Trump.” ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 12, 2017, 2:21pm UTC](https://boards.straightdope.com/t/time-to-end-the-unitary-executive/788726/9 "2017-06-12T14:21:20Z")
Why reconfigure the entire Justice Department? Why not simply create an permanent independent public office to investigate crimes and conflicts of interest within the government? > [@John\_Mace](#): > > Trump is a passing anomaly. I just don’t feel the need to change our government because of him. If there is a legitimate need to change the government, I’m all ears. But “because Trump” doesn’t do it for me. It’s not just him. We (well, not we, because I wasn’t born, but the country) were this close to a constitutional crisis because of the Saturday Night Massacre, and we came perilously close to another until Sessions recused himself - and we still might, since Trump could fire Robert Mueller tomorrow. I suspect conservatives would have been quite happy to have a non-Obama DOJ investigating the Clinton e-mail story, too - though perhaps it worked out just fine for them in the end. ---
**Author:** ![OldGuy](https://avatars.discourse-cdn.com/v4/letter/o/3bc359/32.png) [@OldGuy](https://boards.straightdope.com/u/OldGuy)\ **Post date:** [June 12, 2017, 6:56pm UTC](https://boards.straightdope.com/t/time-to-end-the-unitary-executive/788726/10 "2017-06-12T18:56:32Z")
> [@friedo](#): > > It would require an amendment because there is currently no mechanism to elect executive officers aside from the president and the VP, and the Constitution explicitly vests “the executive power” in the President. (“The executive power” includes law enforcement. And delivering the mail.) > > Precisely how the executive branch is organized is up to Congress; they create the departments and agencies and the Senate approves nominees. But the point here is to sever the subordinate relationship of the Attorney General to the President and make him an equal Constitutional officer independent from the presidency. Doing that necessitates carving out law enforcement from “the executive power” which is a Constitutional issue. If, as you say “delivering the mail” is part of the executive power vested in the President (and it was apparently considered to be) and it was severed by law and not Constitutional Amendment, why is severing the Attorney General office any different than severing the Postmaster General power? The Postmaster General is appointed by and serves at the pleasure of the Board of Governors who are appointed to nine year terms. It would seem something similar could be done with Attorney General. ---
**Author:** ![asahi](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asahi/32/8693_2.png) [@asahi](https://boards.straightdope.com/u/asahi)\ **Post date:** [June 12, 2017, 7:04pm UTC](https://boards.straightdope.com/t/time-to-end-the-unitary-executive/788726/11 "2017-06-12T19:04:29Z")
> [@John\_Mace](#): > > Trump is a passing anomaly. I just don’t feel the need to change our government because of him. If there is a legitimate need to change the government, I’m all ears. But “because Trump” doesn’t do it for me. Trump himself will probably be gone in 4 years but I suspect we’ve already sustained a great deal of institutional damage, and that might just make it easier for a real monster to take power sometime in the next 1-2 election cycles. Beyond that, it’s worth noting that the American presidential system has failed miserably in other parts of the world. ---
**Author:** ![doreen](https://avatars.discourse-cdn.com/v4/letter/d/858c86/32.png) [@doreen](https://boards.straightdope.com/u/doreen)\ **Post date:** [June 12, 2017, 7:29pm UTC](https://boards.straightdope.com/t/time-to-end-the-unitary-executive/788726/12 "2017-06-12T19:29:14Z")
> [@friedo](#): > > . > > This makes the federal government very unusual in retaining a unitary executive structure. So, I propose that we have an independent, elected federal attorney general. The mechanism of election is immaterial; they could be directly elected or run on the same EC ticket with the presidential and vice presidential candidates - whatever floats your boat. > > This would require a Constitutional amendment, so here’s what I came up with. > > Practical considerations: > > In the unlikely event that any Constitutional amendment could be ratified in today’s political climate, this one would essentially require Congress to do some minor reorganizing the executive branch. The DOJ is already under the control of the AG, but certain law enforcement agencies in other departments like DHS would need to be moved around or their law enforcement organs transferred to other agencies. > > The advisory and policy functions of the DOJ would need to be placed elsewhere, probably within the White House itself. I’m unsure what to do with the Solicitor General. > > The Executive Council bit is just for considering fun hypotheticals and adding a wrinkle to Clancy-esque political thrillers. What powers should Congress give it? I dunno. Why would all law enforcement functions have to be under an independently elected attorney general? My state has an independently elected attorney general - but he doesn’t run the state police, or the state university police or the unit that investigates crimes that take place inside prisons or the OMH police or the park rangers or … As far as I know the attorney general’s office has the authority to investigate any crime within the state that the AG chooses- but that doesn’t mean that all law enforcement functions reside there. District/county/city attorneys generally work the same way - the police don’t work for the prosecutor. In my experience , on both the state and local level , there is an investigatory arm of the AG/prosecutors office but they are in no way the primary investigators. I see no reason it couldn’t work the same way on the Federal level - take the FBI out of the DOJ and independently elect an attorney general whose office has prosecuting authority. The Feds do a lot of things that seem odd to me when contrasted with other levels of government- I’d be willing to bet a large sum of money that there is no state where the Attorney General is running an agency that includes the police, the prosecutors and also runs the prisons. But DOJ does. ---
**Author:** ![friedo](https://avatars.discourse-cdn.com/v4/letter/f/8edcca/32.png) [@friedo](https://boards.straightdope.com/u/friedo)\ **Post date:** [June 12, 2017, 7:31pm UTC](https://boards.straightdope.com/t/time-to-end-the-unitary-executive/788726/13 "2017-06-12T19:31:35Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Why reconfigure the entire Justice Department? Why not simply create an permanent independent public office to investigate crimes and conflicts of interest within the government? For one thing, I don’t know if something like an inspector general’s job would be a large enough portfolio to justify a nationally elected officer. But maybe I’m wrong. Mainly I think that the criminal justice system should have a large degree of autonomy from policy, as is the case in most of the state systems. > [@OldGuy](#): > > If, as you say “delivering the mail” is part of the executive power vested in the President (and it was apparently considered to be) and it was severed by law and not Constitutional Amendment, why is severing the Attorney General office any different than severing the Postmaster General power? The Postmaster General is appointed by and serves at the pleasure of the Board of Governors who are appointed to nine year terms. It would seem something similar could be done with Attorney General. It was not severed. The USPS is an executive agency and the president appoints the Postmaster General and the members of the Postal Regulatory Commission, with the advice and consent of the Senate. What Congress did was to make the Post Office no longer a cabinet department and re-organize it as an independent service with its own budget, and eliminate many of the senior political positions in the former department and replace them with civil service members. The President can still fire the Postmaster General if he wants, though as an independent agency there is a statutory requirement that it be “for cause.” But the limits of this - and what exactly constitutes justifiable cause - are almost entirely unexplored. Presidents have generally chosen to avoid confrontations over independent agency firings since Franklin Roosevelt tried to fire the FTC commissioner. That’s why a statutory independent prosecutor (like Kenneth Starr, for example) is problematic in my view. It sets up an inherent conflict in the President’s power to run the executive branch and Congress deciding to regulate the hiring and firing of executive officers.