Legal Issues In the News

The Authority of the President


As schoolchildren, we simplistically learned that there are three branches of government: the legislative branch to make the laws, the judicial branch to make sure the laws are fair, and the executive branch to administer the laws. While all three branches have changed over time, the executive branch that we now have in the United States is very different from the original executive branch.  For example, George Washington had only four Cabinet officers:  the Secretaries of State, Treasury, War, and the Attorney General.  There are now fifteen cabinet-level positions, each supervising a large administrative unit made up of its own substantial agencies. 

This growth is due not only to presidents reaching for more power, but also to the increasing size and complexity of society and commerce.  Our national economy has transformed from largely local, repeat-play trade, to businesses with the potential to abuse many people in many locations.  This growth of complex commerce demanded more regulatory laws, and the administrative support to enforce those laws.  So now, we have agencies to make sure that the planes we fly in are safe, that the food we eat is not tainted, and that shysters do not take our money. 

An so, in addition to being the commander in chief of the military and the leading actor in foreign affairs, the President today sits atop a large and complex collection of national administrative agencies.  But is there any limit on presidential involvement in these agencies? In fact, some national agencies were set up to avoid too much oversight.  The Federal Reserve System, also known as the Bank of the United States, dates back to 1913.  While the President appoints its Board of Governors, they serve for 14-year terms, in part to reduce the potential for political influence. However, the United States Attorney General is a member of the President’s Cabinet.  He heads the Department of Justice, and the FBI is one of the federal law enforcement agencies that is part of the Department of Justice.  Thus, the FBI’s line of authority goes to the White House. 

Unquestionably, Presidents have influenced FBI activities.  In 1972, there was a break-in in the Democratic National Committee’s Headquarters in the Watergate Complex.  The investigating FBI discovered the name E. Howard Hunt listed in the burglars’ address books.  At the time, Hunt was part of a secret organization called the “White House Plumbers,” which had been set up to stop worrisome security “leaks” and investigate sensitive matters for the Nixon administration.  The administration ordered the FBI to destroy the address books to suppress this evidence of the connection between the burglars and the White House. 

Following the Watergate scandal, President Jimmy Carter vowed to establish an independent Department of Justice.  His attorney General, Griffin Bell, implemented internal guidelines to insulate the agency from political pressure.  Former Attorney General Eric Holder drafted the current iteration of those guidelines.  They begin: “The rule of law depends upon the evenhanded administration of justice.  The legal judgments of the Department of Justice must be impartial and insulated from political influence.”  The guidelines continue by noting that it is a “fundamental duty of every employee of the Department to ensure that these principles are upheld in all the Department’s legal endeavors.”  The memo quotes from a 1935 opinion by Supreme Court Justice George Sutherland, which declares that the Department of Justice lawyers are representatives “…not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern all...”  

Justice Sandra Day O’Connor once said, “The founders realized there has to be someplace where being right is more important that being popular or powerful, and where fairness trumps strength.”  This notion of fairness is threatened whenever executive branch desires become Justice Department commands.