November 2008 Vol. 107 No. 2 THE REVIEW

Nothing Improper? Examining Constitutional Limits, Congressional Action, Partisan Motivation, and Pretextual Justification in the U. S. Attorney Removals

David C. Weiss

The forced mid-term resignations of nine U.S. Attorneys was an unprecedented event in American history. Nearly one year after the administration executed the removals, the House Judiciary Committee was still reviewing and publicizing emails, memoranda, and other documents in an effort to understand how the firings were effectuated. This Note examines many of those documents and concludes that the removals were likely carried out for partisan reasons. It then draws on the Constitution, Supreme Court precedent, and separation of powers principles to argue that Congress is constitutionally empowered to enact removal limitations for inferior officers such as U.S. Attorneys so long as those limitations do not impermissibly infringe on the president’s Article II authority or result in congressional aggrandizement. Because of the partisan nature of the attorneys’ removals, this Note argues that Congress should consider such legislation to limit the president’s removal of U.S. Attorneys. In considering the constitutionality and efficacy of a potential statute, this Note examines three previous pieces of legislation on which such removal limitations could be modeled before proposing a fourth, hybrid statute that would emphasize the separation of powers values of balance and accountability in barring “partisan” removals of U.S. Attorneys. The Note concludes by claiming that the framework that the Supreme Court created in McDonnell Douglas v. Green can supply a useful analog to manage the fact-intensive probe into whether a removal was impermissibly “partisan” under the proposed statute or merely a typical, “political” removal, which any removal statute must likely allow to meet constitutional muster.

   //  VIEW PDF
& Other Current Events

Protecting Whistleblower Protections in the Dodd-Frank Act

In 2008, the United States fell into its worst economic recession in over seventy years. In response,...

A Comprehensive Administrative Solution to the Armed Career Criminal Act Debacle

For thirty years, the Armed Career Criminal Act ("ACCA") has imposed a fifteen-year mandatory minimum...

Rethinking the Timing of Capital Clemency

This Article reviews every capital clemency over the last four decades. It demonstrates that in the majority...

The Political Safeguards of Horizontal Federalism

For decades, we have debated whether "political safeguards" preserve healthy relations between the states...

A Solution to Michigan's Child Shackling Problem

Detained children routinely appear before Michigan's juvenile courts shackled with handcuffs, leg irons,...
MAILING LIST
Sign Up to Join Our Mailing List