Thursday, August 8, 2019

Shane on Executive Power and Criminal Prosecution at the Founding

Peter M. Shane, Ohio State University Michael E. Moritz College of Law, has posted Prosecutors at the Periphery, which is forthcoming in the Chicago-Kent Law Review 94 (2019): 241-265:
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.
--Dan Ernst

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