At the start of Trump’s presidency, we were lectured on the independence of the judiciary and the independence of the FBI. We were told over and over again that everything under the sun had to be independent from Trump. There are at least twenty-seven agencies that qualify as “independent.” The rest fit squarely into one branch of government or another.
These entities derive their authority from either congress or the executive and therefore cannot be independent. As extensions of one of the two branches’ authority, they are limited by the constitutional restraints on said branches’ power. Congress cannot maintain an agency that has executive powers. And the president cannot create an agency with legislative powers. Therefore, the function of the agency determines to whom the agency answers.
The judiciary is independent in that it is its own branch of government, but it is inferior to the executive and the legislative branches. The FBI is not independent because it is an executive function. And while those twenty-seven agencies were specifically designed to be insulated from the political branches, Senator Feinstein is adding another entity to this list of supposed “independent” agencies.
The Department of Justice.
“The Justice Department is not an arm of the White House. The Justice Department is independent and serves the American people. Its job is to follow the facts and the law. Law enforcement investigations must be initiated and carried out free from political interference.”
I just don’t know where she comes up with this stuff.
The Office of Attorney General is one of the oldest executive cabinet positions. Though, as the DoJ’s website points out, The Attorney General’s role was substantially smaller than it is today. It represented the interests of the United States Federal Government before the Supreme Court. The Judiciary act of 1789 created the office of Attorney General.
The statute reads, “And there shall also be appointed a meet person, learned in the law, to act as attorney-general for the United States, who shall be sworn or affirmed to a faithful execution of his office; whose duty it shall be to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and to give his advice and opinion upon questions of law when required by the President of the United States, or when requested by the heads of any of the departments, touching any matters that may concern their departments, and shall receive such compensation for his services as shall by law be provided.”
Less than a hundred years later, congress expressly placed the Attorney General and the newly formed Department of Justice under the auspices of the Executive Branch.
Is Senator Feinstein’s point sufficiently debunked?
If it’s not, we can infer that every executive department is not independent based solely on the structure of the executive branch.
In Federal 69, Hamilton says that the executive authority is to be vested in a single magistrate.
In Federal 70, Hamilton urges for the creation of an “energetic executive.” His call for a singular and an energetic executive is premised upon the notion that “decision, activity, secrecy, and dispatch, will generally characterize the proceedings of one man in a much more eminent degree” than in cases where the executive is not singular. He posits several scenarios where this unity of command (characterized by the aforementioned qualities) is jeopardized. The first is the existence of multiple executives. The second is the existence of a single executive bogged down by dependence on another’s authority. He says “this unity may be destroyed in two ways: either by vesting the power in two or more magistrates of equal dignity and authority; or by vesting it ostensibly in one man, subject, in whole or in part, to the control and co-operation of others, in the capacity of counsellors to him.”
Senator Feinstein wants a system where the executive cannot exercise his authority without getting permission from subordinate departments. She says that the DoJ serves the American people. She’s right. It does serve the interests of the American people because the people elected Donald Trump to serve as the executive, whose job, interestingly enough, is to enforce the law.