David C. Weiss (University of Michigan at Ann Arbor) has posted Nothing Improper?: Examining Constitutional Limits, Congressional Action, Partisan Motivation, and Pretextual Justification in the United States Attorney Removals (Michigan Law Review, Vol. 107, No. 1, 2008) on SSRN. Here is the abstract:
This Note argues that Congress possesses the constitutional authority to restrain the President’s removal of United States attorneys (USAs) within limits established by separation of powers principles and the Supreme Court’s removal power jurisprudence. It maintains that because of the partisan, pretextual removals of the USAs, Congress can and should exercise its authority by passing legislation that requires a report of the grounds for removal and provides a removed USA with a cause of action to challenge her removal. The Note demonstrates why Congress should consider legislation in the wake of the USA firings by describing the controversy surrounding the USAs’ removal and arguing that the proffered reason for their firing was pretext for removals motivated by partisanship. It asserts that USAs are constitutionally-delineated inferior officers and traces the history and current state of the removal power jurisprudence, concluding that removal limitations that do not infringe the President’s Article II authority can be constitutional. It claims that the fired USAs do not possess a cause of action to challenge their removals, but Congress is constitutionally empowered to create limits for future removals, as well as a cause of action for a USA to challenge her removal, so long as such constraints do not undermine the President’s Article II grant. The Note asserts that because of the Administration’s efforts to subvert the political check on the removal power by executing the partisan removals pretextually, Congress would be historically consistent and normatively justified in creating a statutory cause of action for a USA to challenge her removal. It addresses three previous legislative frameworks that Congress has considered in its efforts to insulate the DOJ from Executive Branch partisanship and concludes that a hybrid statute best incorporates separation of powers values and Supreme Court precedent. The Note concludes by differentiating between partisan removals and political removals. It argues that federal employment law and a pre-existing, Supreme Court framework supply a useful analog to manage the fact-intensive probe into partisanship that a court hearing a removal challenge under the proposed statute would face.
This student note is recommended.