Break up the Presidency? Governors, State Attorneys General, and Lessons from the Divided Executive

Abstract

Proponents of the unitary executive have contended that its adoption by the framers “swept plural executive forms into the ash bin of history.” Virtually every state government, however, has a divided executive in which executive power is apportioned among different executive officers independent of gubernatorial control. Focusing on the Office of the State Attorney General, this Essay examines the state experience with the divided executive and demonstrates that the model of an independent attorney general has proved both workable and effective in providing an intra-branch check on state executive power. The Essay then discusses the potential application of the model of the divided executive at the federal level. For a number of reasons, there has been a dramatic expansion of presidential power in the last half century with the result that Congress and the courts are often no longer able to constrain executive power in a timely and effective manner. In such circumstances, the only possible check on presidential power must come from within the executive branch. Yet the ability of the Federal Attorney General to provide such a check is, at best, illusory because, under the structure of the unitary executive, the Attorney General is subject to presidential control. Accordingly, the Essay questions whether the federal government should borrow from the state experience and make the Attorney General an independent officer. author. William R. Kenan Distinguished Professor of Law, University of North Carolina at Chapel Hill. I am grateful to Elizabeth Ferrill and Tyler Tarrant for their research assistance. I would also like to thank Hal Krent, Jim Tierney, and (especially) Kara Millonzi for their helpful comments and suggestions. MARSHALL FORMATTED FOR SC 2 (4-26-06) 8/31/2006 2:49 PM break up the presidency?