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

Speedy Trial as a Viable Challenge to Chronic Underfunding in Indigent-Defense Systems

Across the country, underresourced indigent-defense systems create delays in taking cases to trial...

A Blended Approach to Reducing the Costs of Shareholder Litigation

Multiforum litigation and federal securities law class actions impose heavy costs on corporations and...

The Scope of Precedent

The scope of Supreme Court precedent is capacious. Justices of the Court commonly defer to sweeping rationales...

Reinventing Copyright and Patent

Intellectual property systems all over the world are modeled on a one-size-fits-all principle. However...

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,...
MAILING LIST
Sign Up to Join Our Mailing List