With respect to the federal government, whose formation he then was championing, Alexander Hamilton assured skeptics during the debates over the new Constitution that state governments would enjoy “one transcendent advantage” — they would retain control over “the administration of criminal and civil justice.” The prosecution of crimes would not be a federal responsibility at all.
That consensus position of the Framers is one that my friends David Rivkin and Lee Casey should have kept in mind before writing “The Wrong Way to Stop Civilian Terror Trials,” a deeply flawed essay published in the Wall Street Journal last week. The two former Reagan Justice Department officers usually offer compelling insights on executive war powers, but their claim that criminal prosecution lies at “the very core of [the president’s] constitutional power” is meritless. It also leads them to an even more specious conclusion: namely, that Congress somehow violates the Constitution by using its power of the purse to block the Obama administration’s efforts to prosecute enemy-combatant terrorists in civilian federal courts.
Messrs. Rivkin and Casey specifically target budget provisions that bar using federal funds to transfer prisoners detained at Guantanamo Bay to the United States. This maneuver, the authors correctly assert, thwarts civilian prosecution. It keeps the terrorists outside federal-court jurisdiction and thus prevents their physical presence at trial, a constitutional right the lawyers reasonably assume the detainees would have in the civilian justice system. (That is, notwithstanding colorable arguments to the contrary, it is a safe bet that federal judges would continue granting the fully panoply of due-process protections to any detainees tried in civilian court.)
From there, though, Rivkin and Casey go off the rails. Congress, the lawyers claim, is violating the Constitution by dictating “whether, when, and where to bring a particular prosecution.” This places the president (and, derivatively, his Justice Department) in a purportedly unusual and untenable position: Though the nation’s “chief federal law enforcement officer and prosecutor,” he is forced “to exercise his discretion in accordance with Congress’s wishes rather than his own.” That, they insist, “violates the Constitution’s separation of powers.”
From its basic premises to its overwrought conclusion, the lawyers’ argument is wrong. There is nothing in the Constitution about the president being the chief federal law-enforcement officer and prosecutor — in stark contrast to Article II’s designation of the president as “commander-in-chief” of the armed forces. Prosecutorial authority, instead, is inferred from Article II’s endowment of all “executive power” in the president. Obviously, since prosecution is an executive function, it is a power the executive branch must have if it is to be exercised by the federal government at all — Congress may prescribe laws, but it may not enforce them. Still, whether and under what circumstances the prosecution power was to be exercised at the federal level are questions the Constitution left entirely up to Congress. The fact that some authority is executive in nature does not make it a “core” presidential power — not if the word “core” is to have any meaning.
Quite intentionally, the Constitution did not establish a federal role in law enforcement. Consistent with Hamilton’s sentiments, James Madison had written that federal powers “will be exercised principally on external objects” — meaning intercourse between our nation and other nations. Madison identified these “external objects” as “war, peace, negotiation, and foreign commerce.” Consequently, the “core” of presidential power is found where Article II intersects with these matters. Thus did Madison elaborate that “the powers reserved to the several states would focus on internal objects” — objects which, “in the ordinary course of affairs, concern the lives, liberties and property of the people,” including the “internal order . . . of the state.”
The Constitution did not prohibit a federal role in prosecution, just as it did not forbid the creation of federal courts inferior to the Supreme Court. Rather, it left these matters up to the legislature, which would have to find constitutional justifications for any federal intrusions.
In conjunction with establishing the lower federal courts in the Judiciary Act of 1789, Congress created the office of attorney general. President Washington chose Edmund Randolph for the position, making him the fourth cabinet member. Months earlier, among its first orders of business, the first Congress had dealt with what were understood to be the president’s core responsibilities — national defense, foreign affairs, and finance — by establishing the secretaries of war, state, and the treasury.
As if that did not make it clear enough that prosecution was not a core presidential function, the position of attorney general was not originally conceived as prosecutorial in nature. Rather, it was a part-time job with a nominal salary and no office or staff, created because Congress (a) realized the United States would need legal representation in court cases and (b) thought it prudent for the president to have a legal adviser.
So ingrained was the assumption that criminal enforcement was a state issue that the Department of Justice — which we now think of as the center of our prosecutorial universe — did not even exist until Congress created it in 1870. In fact, the contention by Rivkin and Casey that Congress may not use its budgetary authority to limit the president’s prosecutorial options ignores the fact that, for decades, Congress declined to establish a Justice Department at all, much less to fund various projects the attorneys general wanted to take on. Prior to the late 19th century, while there were U.S. attorneys and federal marshals tending to very limited federal interests in the states and territories, there simply was no system of federal law enforcement to speak of.
That system developed, over a century after the Constitution’s adoption, under the direction of Congress. From the Progressive Era through the New Deal, and continuing to our own day, federal legislation and judicial decisions combined to work a radical transformation of the federal role in domestic life. Presidential administrations have pushed this process along to greater and lesser degrees. It has always been driven, though, by legislation, not by changes to the Constitution. It is Congress’s decision to act that controls the federal prosecutorial function, and although Congress has enacted many penal laws, it was not required by the Constitution to enact any.
That brings us to the main flaw in the Rivkin and Casey theory: All federal law enforcement must be performed in accordance with Congress’s wishes. It has always been that way, with every single federal prosecution in our history. To claim, as Rivkin and Casey do, that congressional limitations on “whether, when, and where to bring a particular prosecution” violate separation-of-powers principles hopelessly mangles the concept of “prosecutorial discretion.”
In point of fact, the prosecutor unilaterally decides only whether to charge an offense — and even that decision is shaped by Congress, since a prosecutor may only charge crimes Congress has legislated, and must prove the offense elements Congress has defined. The decision when to charge is controlled by the statute of limitations and speedy-trial rules imposed by Congress. The decision where to charge is totally dependent on Congress’s power to establish lower federal courts, place limits on their jurisdiction, and prescribe venue standards.
Moreover, because the Constitution does not mandate a federal prosecutorial function, the Justice Department — itself a creature of statute — is entirely dependent on Congress to fund all of its activities, not just terrorism prosecutions. Congressional control over federal prosecution is thus different not only in degree but in kind from congressional control over the president’s conduct of foreign affairs, to which Rivkin and Casey compare it.
Because the conduct of foreign affairs is a core constitutional function of the executive, the president would have to carry out that responsibility no matter what Congress did. A threat to cut off funding unless the president hewed to congressional wishes would, in fact, provoke a constitutional crisis. By contrast, the Constitution would not be offended in the slightest were Congress to repeal every federal penal statute, shut down the Justice Department, and even eliminate the office of attorney general — leaving the president with no capacity to prosecute anyone.
Such wholesale elimination would be foolish policy, but foolishness is not unconstitutional. Yes, there are too many federal statutes, and much taxpayer money is wasted by federal duplication in enforcement matters state prosecutors handle capably (and often with more deference to community sensibilities). But issues such as terrorism, organized crime, international drug cartels, and the integrity of our financial markets are national in scope, beyond the capacity of any single state to police effectively. The attorney general thus holds a vital national office, and federal law enforcement has its crucially important place in our society. It is not, however, a place carved out by the Constitution. It is sculpted by Congress.
Which brings us to a last point: Gitmo detainees should be under complete executive control, not as defendants beholden to the president and his Justice Department but as war prisoners beholden to the commander in chief. Given their splendid work on war powers, it is surprising that the authors failed to address this. The wartime decisions to detain prisoners and try them by military commission were once understood to be completely entrusted to the president and the military, the conduct of war being a core presidential power. Nevertheless, thanks to a campaign spearheaded by Barack Obama, Eric Holder, congressional Democrats, many current DOJ officials, and the Bush-deranged Left, the Supreme Court has ruled that wartime detention required judicial oversight, and that the president could not unilaterally authorize military commissions — they had to be blessed by Congress and reviewed by federal judges. The “rule of law,” Messrs. Obama and Holder maintained — against precedent and history — demanded nothing less.
Now, ironically, in the federal civilian courts where Congress has always dictated the rule of law, Obama and Holder demand unilateral control. The Constitution does not give it to them. If they want to bring enemy combatants to the United States for civilian trials in which al-Qaeda operatives get all the rights of American citizens, they need to convince Congress and the American people. I’d have hoped that Messrs. Rivkin and Casey would tell them as much.
— Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.