Prosecutors at the Periphery

27 Pages Posted: 9 Jul 2019

See all articles by Peter M. Shane

Peter M. Shane

Ohio State University (OSU) - Michael E. Moritz College of Law

Date Written: July 8, 2019

Abstract

Contrary to so-called unitary executive theory, Article II does not guarantee presidents the power to control federal criminal prosecution, a supervisory role Congress has placed by statute with the Attorney General. Nor is Congress without authority to protect federal prosecutors from policy-based dismissals. Rule-of-law values embodied in our system of checks and balances could alone justify these conclusions. But the same conclusions follow also from close attention to the entirety of the relevant constitutional text and from an understanding of how the Founding generation would have understood the relationship between executive power and criminal prosecution. In contemplating the newly proposed constitutional text between 1787 and 1789, those Americans enfranchised to vote on its ratification would have brought to their understanding of “executive power” not just dictionary definitions, but also their experience of living under executive power as exercised in Great Britain, in the colonies, and under state constitutions. They would have understood prosecution to be a form of judicial power, and the “original public meaning” of Article II executive power would not have guaranteed presidents the power to control prosecutorial discretion.

Keywords: presidential power, executive power, constitutional law, administrative law, criminal prosecution, originalism, constitutional interpretation, faithful execution, vesting clause

JEL Classification: K3, K19

Suggested Citation

Shane, Peter M., Prosecutors at the Periphery (July 8, 2019). Chicago-Kent Law Review, Vol. 94, No. 2, 2019; Ohio State Public Law Working Paper No. 489. Available at SSRN: https://ssrn.com/abstract=3416630 or http://dx.doi.org/10.2139/ssrn.3416630

Peter M. Shane (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States

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