May 1975] REFORMING JUSTICE 385 The cases which purport to apply these standards evidence little more than an imprecise, ad hoc approach to determining character of office. 116 These subjective, case-by-case determinations beg for criteria which stand on a sound theoretical footing and which would find broad application. Two cases reveal the amorphous qualities of the present case law. In Wiener v. United States,117 the Court analyzed the character of an office within the War Claims Commission, an agency which "adjudicate[d] according to law"118 claims of those suffering personal injury or property damage during World War II. The Commission's function revealed an "intrinsic judicial character, "119 thus activating the Humphrey exception and sheathing the "Damocles' sword of [presidential] removal. "120 Morgan v. United States121 contains a similar characterization and reasons in no less conclusory terms. The Court found that administration of a rate-setting proceeding, though presided over by a Cabinet member, was not a purely executive function. The administrative proceeding was both quasi-legislative and quasi-judicial: the former because of the exercise of a delegated congressional power; the latter because of the evaluation of evidence and promulgation of an order based on findings. 122 The Myers-Humphrey distinction becomes even less discernible as the agency under examination becomes more diverse. In Morgan v. Tennessee Valley Authority, 123 the characterization inquiry was directed to the multifunctional TVA. The Court of Appeals for the Sixth Circuit found that some duties of the TVA were nonexecutive: the duty to enact bylaws was termed legislative; the duty to make decisions, judicial. 124 Nevertheless, these duties merely attended the agency's exercise of statutory functions previously inhering in the executive branch. 125 The court therefore concluded that the TVA exercised "predominantly an executive or administrative 121 298 U S. 465 (1936). In Morgan the issue was not removal, but rather the enforceability of a rate-setting order by the Secretary of Agriculture Thus Morgan's only relevance here concerns the Court's characterization of the rate-setting function 122 Id. at 479-80. 12 115 F.2d 990 (6th Cir 1940, cert. denied, 312 U.S. 701 (1941) 124 However, the court noted that the TVA did not judge private controversies nor those involving private litigants and the Government and that there was no judicial review of the agency's decisions. Id. at 994 396 NEW YORK UNIVERSITY LAW REVIEW [Vol. 50.366 function"126 and held that the Humphrey exception to the presidential removal power offered no protection to a TVA director. 127 Myers-approved removal followed, since the executive functions were predominant and the nonexecutive ones were "incidental. "128 Although the Morgan test serves to guarantee the integrity of Myers-Humphrey by focusing on the most significant function, i.e., predominance, it is of little help in identifying the underlying character of an agency. In the absence of more precise analytical tools, two broad approaches to determining character of office are possible. Under the first, Humphrey becomes the paradigm, and the FTC the agency which that case characterized becomes the talisman.129 An agency's characterization then turns on nothing more than its resemblance to the FTC.130 The second approach applies a civics book understanding of the respective functions of the three branches. 131 Neither approach, however, identifies the character of an agency exercising a combination of powers derived from all three branches an agency such as the Justice Department. To evaluate the constitutional permissibility of the Ervin proposal, characterization of the Department must be attempted. Much-needed precision in this inquiry would be supplied by the test suggested by one commentator. That test looks to constitutional powers rather than agency functions. The proper inquiry thus becomes: [I]n carrying out the law, does the agency do a legislative or an executive act? That is, does it exercise part of the Constitutional power of Congress, or of the President? To put it still another way: if the act had not been entrusted to the agency, who would have had power to do it-Congress or the President? The test, then, is not whether certain functions of the agency consist in "carrying out" rather than "passing" the laws; it is whether the agency is the "arm" of Congress for exercising the constitutional powers of Congress. . . .132 126 Id. at 993. The statute at issue in the TVA case allowed removal of directors by joint resolution of the Senate and House or by the President for stated causes. The direc tor's removal, which was not made under either of these methods, was upheld by the Court. Id. at 991. 128 Id. at 993-94. See 2 B. SCHWARTZ, A Commentary ON THE CONSTITUTION OF THE UNITED States 54-55 (1963). 1 See Morgan v. TVA, 115 F.2d 990 (6th Cir. 1940), cert. denied, 312 U.S. 701 (1941); Isbrandtsen-Moller Co. v. United States, 14 F. Supp. 407, 412 (S.D.N.Y. 1936) (three-judge court), aff'd, 300 U.S. 139 (1937). 130 Larson, supra note 62, at 282. 181 Id. at 275-76. 1 Id. at 276. May 1975] REFORMING JUSTICE 387 This test provides the courts with more concrete criteria than those offered by prior approaches. Moreover, for purposes of this discussion, it represents a convenient scale for weighing the constitutionality of the Ervin proposal. The first step in that process is to explore the constitutional sources of the powers exercised by the Attorney General, by his subordinates and by the Department of Justice. IV THE ATTORNEY GENERAL, THE DepartmenT OF JUSTICE A. The Framers' Intentions The Constitution makes no explicit mention of the functions which the Attorney General and the Department perform. Neither the officer nor the agency seems to have been anticipated, as no debate on the subject is found in the record of the Constitutional Convention, although the framers did discuss the creation of other departments. 133 In view of their delineation of other substantive areas for executive administration, the framers' failure to discuss Justice functions might suggest that they could not decide which branch of government would enforce and administer justice. Yet they did intend the President's functions to include execution of the laws, 134 and the Convention apparently considered a strongly worded proposal to the effect that this responsibility subsumed law enforcement. 135 Hamilton's description of the administration of government lists examples of functions falling "peculiarly within the province of the executive department. "136 Law enforcement was not among them. Yet Hamilton did say that the judiciary “must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. "137 Although the Constitution authorizes creation of a judicial system, 138 it makes no provision for the defense or prosecution of 133 For example, the Hamilton plan would have provided for Departments of War, Naval Affairs, Finance and Foreign Affairs. 3 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 625 (M. Farrand ed. 1911). 134 See, e.g., 1 id. at 21, 63, 66, 226, 244, 292 15 The New Jersey Plan provided in relevant part that [i]f any State, or any Body of Men in any State, shall oppose or prevent the carrying into Execution the Acts or Treaties of the United States; the Executive shall be authorised to enforce and compel Obedience by calling forth the Powers of the United States. 2 id. at 157-58. 136 THE FEDERALIST NO. 72, at 450 (H. Lodge ed. 1888). 137 Id. No. 78, at 483. 18 U.S. CONST. art. I, § 8, cl. 9; id. art. III, § 1. government cases. The Constitution envisions executive departments and their officers, 139 provides that such officers advise the President140 and charges the President with the duty to faithfully execute the laws. 141 Nevertheless, the faithful execution clause fails to distinguish between presidential supervision of the general administrative work of government and direct presidential control of law enforcement. Left unanswered is whether the constitutional provision for executive departments necessarily includes Justice and whether, as one of the President's principal advisors, the Attorney General must necessarily be characterized as an executive official. Neither the Constitution nor the Convention debates speak directly to these issues. This omission may perhaps be remedied by examining those elements of the English and colonial governments that could have shaped the framers' assumptions regarding the enforcement of the laws. The office of Attorney General of the United States evolved from the system of attorneys general and local prosecutors which developed in the American Colonies. 142 Since the power to appoint colonial attorneys general lay not with the governor but with the King, they were the Crown's representatives in colonial courts. 143 In general, these colonial officers exercised the powers of their English counterparts, 144 often advising colonial governors on 1 The Constitution provides that the "President... may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices." Id. art. II, § 2, cl. 1. 140 Id. 141 Id. art. II. § 3. 142 H. CUMMINGS & C. MCFARLAND, FEDERAL JUSTICE 8-9 (1937). A brief historical sketch appears in an unpublished work by J. Hightower, From "Attornatus" to the Department of Justice-An Historical Perspective of the Nature of the Attorney Generalship of the United States as Embodied in the Department of Justice Act of 1870 (Library of Congress, Legislative Reference Service, Aug. 17, 1966), in 1974 Hearings, supra note 2. at 405. 143 CUMMINGS & McFarland, supra note 142, at 9-10. 144 Key, The Legal Work of the Federal Government, 25 U. VA. L. Rev. 165, 169 (1938). The King's legal representative first became known by the title attornatus regis around 1253. The appointment in 1472 of an Attorney General of England with deputizing power established the ascendancy of the King's lawyers-who as attornati worked independently of each other in particular areas or courts-over those of other great lords. This office evolved with the English government, becoming a Cabinet post which carried with it a seat in the House of Commons and embracing legislative and advisory duties. By the 17th century the Attorney General of England was handling all Crown litigation but only those criminal cases important enough to attract the King's attention. Consequently, in the absence of local prosecutors, most criminal May 1975) REFORMING JUSTICE 389 policy 145 Criminal prosecutions were conducted as they had been in England. 14 148 Although there was no Attorney General under the Articles of Confederation, 147 the solons of the new republic swiftly set up a judicial system after the Constitution's adoption. The very first bill introduced in the Senate became the Judiciary Act, which created a network of federal courts as well as the position of Attorney General 148 Debate on the section of the bill which established that office produced one significant change: while the bill as originally drafted granted courts the authority to appoint both the Attorney General and United States Attorneys, the Act in its final form vested that power in the President. 149 The form of the original bill supports the argument that the framers and their contemporaries did not view the office of Attorney General as intrinsically executive. The Act, however, placed the Attorney General under direct presidential control; in addition, the advice provision of the Act made him a "ministerial" 150 rather than an inferior officer. 151 Edmund Randolph, the first Attorney General, 152 occupied an office that bore little resemblance to its modern counterpart. 183 Randolph had a meager salary and no staff. Advising the President and department heads constituted most of the work of what was a cases were prosecuted privately. Thus the English Attorney General shared his otherwise uninfringed prosecutorial discretion with private citizens. See CUMMINGS & MCFARLAND, supra note 142, at 8-9, Fairlie, The United States Department of Justice, 3 MICH. L. REV. 352, 358 (1905), Key, supra, at 165, 166-68, Note, The Special Prosecutor in the Federal System: A Proposal, 11 AM. CRIM. L. REV. 577, 603-04 (1973) (hereinafter Note, Special Prosecutor]. 145 Nealon, The Opinion Function of the Federal Attorney General, 25 N.Y.U.L. REV. 825 (1950). 14 Colonial attorneys general and private citizens shared responsibility for law enforcement. See Fairlie, supra note 144, at 358, note 144 supra. Even today, North Carolina permits privately employed prosecutors to aid the State in criminal cases. One such private prosecutor, hired by the family of the deceased victim, assisted the State in a recent murder trial. NY Times, Apr. 29, 1975, at 42, col. 1. 147 Key, supra note 144, at 173-74 n.31. 14 For the original language, see note 21 supra. 14 See Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 HARV. L. REV. 49, 108-09 (1923). 150 H LEARNED, THE PRESIDENTS CABINET 159 (1912). 151 CUMMINGS & MCFARLAND, supra note 142, at 18. 158 LEARNED, supra note 150, at 159-60 153 For accounts of the early development of the office of Attorney General, as well as the movement toward and early growth of the Department of Justice, see CUMMINGS & McFarland, supra note 142, Learned, supra note 150, at 159-98, Hightower, supra note 142; A. Relyea, Circumstances Surrounding the Creation of the Office of the Attorney General and the Justice Department (Library of Congress. Congressional Research Service, Nov. 14, 1972), in 1974 Hearings, supra note 2, at 420, Buckley, The Department of Justice-Its Origin, Development and Present Day Organization, 5 B.U.L. REV. 177 (1925), Key, supra note 144. 65-728 0-76-45 |