Firing U.S. Attorneys: An Essay

28 Pages Posted: 11 Jun 2008

See all articles by David M. Driesen

David M. Driesen

Syracuse University College of Law

Abstract

This essay examines the constitutional basis for Justice Department independence, the main constitutional issue underlying the recent dismissal of United States Attorneys. It outlines a duty-based theory of executive power, a theory that Article II should be understood as a set of checks and balances to secure faithful execution of the law, rather than solely as a source of Presidential power. It shows how this theory can provide a constitutional justification for Justice Department independence. The essay reexamines the unitary executive theory which claims that the Constitution gives the President unlimited power to fire prosecutors in the context of the dismissals, showing that the theory helped justify these widely lamented actions. It argues that this widely touted theory merits reexamination in light of the dismissals and that the duty-based theory outlined here provides a textually plausible and attractive alternative.

Keywords: unitary executive, separation of powers, executive power, United States attorneys, presidential power

Suggested Citation

Driesen, David M., Firing U.S. Attorneys: An Essay. Administrative Law Review, Vol. 60, No. 3, 2008, Available at SSRN: https://ssrn.com/abstract=1142946

David M. Driesen (Contact Author)

Syracuse University College of Law ( email )

Dineen Hall
950 Irving Ave.
Syracuse, NY, NY 13244
United States
315-443-4218 (Phone)
315-443-4141 (Fax)

HOME PAGE: http://www.law.syr.edu/faculty/facultymember.asp?fac=12

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
93
Abstract Views
969
Rank
500,426
PlumX Metrics