In an article here at NRO published yesterday, Andy McCarthy powerfully criticizes a recent Wall Street Journal essay by David Rivkin and Lee Casey. Rivkin and Casey, objecting to what they viewed as congressional over-reaching, claimed that the power to prosecute criminals is at “the very core” of presidential power under the Constitution. Andy begs to differ, but I think he overstates his case somewhat.
It is true that the definition of crimes, and the control of jurisdiction and procedure (both executive and judicial) as to criminal prosecutions, belong entirely to Congress. In this Andy is surely right, and it is Rivkin and Casey who have over-reached in arguing against congressional control in such matters. But once Congress has set down in legislation what acts constitute crimes, and when, where, and how they are to be prosecuted, the constitutional authority for such executing those prosecutions belongs to the executive branch–ultimately, the president–and for adjudicating those prosecutions belongs to the judicial branch.
Whatever we might say, then, about the comparatively minimal role for federal law enforcement when stacked against the more comprehensive law-enforcement power of the states, it just can’t be accurate to say the “the Constitution did not establish a federal role in law enforcement.” As Andy himself notes, moreover, the Congress in passing the Judiciary Act of 1789 did create both the post of attorney general (though no centralized Justice Department until decades later) and the posts of United States attorneys in every one of the newly created judicial districts. Those U.S. attorneys were charged “to prosecute . . . crimes and offences, cognizable under the authority of the United States.” There weren’t many such “crimes and offences” at first, but those that were legislated certainly needed to be enforced.
That there was at first no Justice Department (from which fact Andy infers that “there simply was no system of federal law enforcement to speak of”), or that the attorney general had little or no staff, or that the business of the U.S. attorneys and marshals was minimal for many years, does not mean that prosecution was not a “core” executive function. Other than customs collectors at ports, it was probably the federal marshals, attorneys, and judges who brought the presence of the national establishment most directly into people’s lives from the very first.