The Divided Executive

Abstract

Article II’s apparent provision for a unitary executive is at odds with a mature understanding of what makes the separation of powers constitutionally valuable. From Montesquieu to Brandeis, jurists theorizing separation of powers have characterized its purpose as primarily to promote liberty and the rule of law. Two centuries of constitutional experience lets us now see more clearly that liberty and the rule of law are promoted by checks and balances that prevent individual actors, including the President, from conclusively determining the reach of their own powers. Dividing the executive may further promote the liberty and rule-of-law goals of the Constitution’s existing checks and balances. This article, written for a symposium at Duke University School of Law entitled An Even More Perfect Union: Proposed Amendments to the Constitution, further develops and deepens the case made in existing scholarship for dividing the American national executive, and in particular for constitutionally securing the independence of the Attorney General.

Keywords: separation of powers, checks and balances, attorney general, constitutional amendment, independent prosecutor, one-House veto, Chadha, Montesquieu, Madison, impeachment, independent counsel