This article attempts to accomplish two distinct but related objectives. First, it initiates the proposed systematic study of the Office of the Attorney General by examining its early role. Second, it explores how these early experiences help to answer today's questions. To those ends, part I examines the establishment of the Office of the Attorney General. Studying the genesis of the office and contrasting it to the other significant offices created by the First Congress, such as the Secretaries of Foreign Affairs, War, and Treasury, reveals the priorities and concerns of these early legislators, many of whom had been instrumental in drafting the Constitution. This study reveals that the First Congress approached the question of presidential control with a useful mixture of sensitivity and pragmatism that is insufficiently appreciated today
Part II examines the frustrations Edmund Randolph, the first Attorney General, experienced in the office, focusing particularly on his efforts to persuade the courts to enforce Congress's first pension act for disabled veterans of the Revolutionary War. In Hayburn’s Case, a 1792 case well known for its implications for the role of the federal judiciary, Randolph, on behalf of the United States, petitioned the Supreme Court for a writ of mandamus ordering a lower court to administer the Invalid Pensions Act of 1792. But the Court refused to allow the Attorney General to make his motion. Because the Court did not issue a written opinion in the case, it has been difficult to probe its reasoning. However, the unpublished personal notes of Justice Iredell, coupled with contemporaneous newspaper accounts, letters, and other Supreme Court decisions, suggest that the Court's principal concern was whether the President and the Congress had sufficiently authorized the Attorney General to make such a motion.
These efforts by Randolph to secure enforcement of the pension law, offering the Supreme Court its first opportunity to consider the respective roles of the President and Congress in controlling the Attorney General, provide us with an excellent, hitherto unexplored, opportunity to examine the early role of the Attorney General.16 Studying this experience reveals that many of the current tensions in our tripartite system of government were evident at its inception. From the beginning, there were questions about whom the Attorney General represented, who should and would control the incumbent Attorney General, and what it means to represent the "interests of the United States." In addition, one sees the beginnings of the notably vibrant and enduring debate between those who see the federal courts merely as "resolvers of private disputes" and those who believe they serve a special function as interpreters and protectors of the Constitution.
Finally, part III explores the extent to which these early experiences can contribute to modern debates. As the Article indicates, some of the precise uncertainties and frustrations confronting early Attorneys General already have been resolved. However, many fundamental questions remain: Can Congress order an Attorney General to act without regard to the views of the President? Can Congress place law enforcement responsibilities in the hands of individuals outside presidential control? Can the Attorney General act without clear congressional authorization? The early history cannot answer these questions. Indeed, those who find clear answers in this history are probably distorting the history. But the approach taken by the framers and early interpreters of the Constitution can and should inform our debate.
1989 Duke L.J. 561-653
Scholarly Commons Citation
Bloch, Susan Low, "The Early Role of the Attorney General In Our Constitutional Scheme: In the Beginning There Was Pragmatism" (1989). Georgetown Law Faculty Publications and Other Works. Paper 1204.