Francis Menton’s response to a New York Times op-ed to former Justice Department official Sally Yates, in which the latter calls for treating her former department as, in John Hinderaker’s summary, “an Executive Branch that is independent of, and superior to, the President.”
Menton begins with a plain statement of our Constitutional order:
As I have pointed out multiple times, there is nothing complicated about the constitutional law on presidential control of the Justice Department. Article II, Section 1 of the Constitution places all of the executive power of the federal government in the President: “The executive power shall be vested in a President of the United States of America.” The Justice Department is an executive agency, and therefore reports to the President in every respect. That of course does not mean that it is a good idea for the President to get personally involved in day-to-day prosecutorial decisions; but he is perfectly entitled to do so if he wants. And he certainly has final say on all policies of the Department.
In contrast, Yates provides no explanation of the legal authority for her preferred position. Rather, she relies on assertions of objectivity and wisdom at DOJ. The bulk of Menton’s essay is a refutation of such assertions.
The picture drawn (which I, for one, do not doubt) is of a department — among multiple departments — that is entirely an agent of the political Left and the political party tasked with implementing its interests. For example, you’ve got disinterest from the DOJ in the IRS’s practice of blocking conservative groups from achieving non-profit status while the same DOJ shakes down companies for “settlements” that instructed financial giants to send hundreds of millions of dollars to progressive non-profit groups.
This small sampling illustrates, well, the challenge in stopping the government’s progressive ratchet. When Democrats are in power, they push for politicization of the bureaucracy, which naturally has a lean in the big-government direction. This has long been true, but President Obama brought to it the zeal of a left-wing community organizer.
Undoing the civic damage would require either a stark and visible reversal from a Republican administration or at least a much-longer reign for the GOP. The discouraging thing about that strategy, though, as we’ve seen with the failure to repeal ObamaCare after years of running on just that policy, is that big government tends to corrupt the people in power more than they bring change to it.