Bench Memos

Andy Overstates His Case

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.

Where Andy overstates his case is in downplaying the extent to which the Constitution contemplated, from the first, a federal function of criminal prosecution.  He writes, “Quite intentionally, the Constitution did not establish a federal role in law enforcement.”  While the Constitution does not contain within its own four corners a complete criminal code, this statement can’t be really right.  The Constitution defines one criminal offense–treason–in Article III.  In that same article it specifies jury trials for all criminal offenses, and requires them to be conducted in the states where the offenses allegedly occurred.  In Article I, the Constitution contemplates that Congress will exercise a power over “Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations,” and later guarantees (subject to extraordinary suspension) the “privilege of the Writ of Habeas Corpus,” a judicial process that constrains law enforcement authority.  And in Article II, the president is enjoined to “take Care that the Laws be faithfully executed,” and is given a power to “grant Reprieve and Pardons for Offenses against the United States.”

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.

Andy is right, and Rivkin and Casey are wrong to complain, about the congressional power to set the metes and bounds of federal criminal prosecution and jurisdiction–substantive, procedural, and geographic.  But there was no need for Andy to downplay the important federal function of law enforcement–contemplated from the first in the Constitution–to such an exaggerated extent.


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