A Note for Our New Attorney General

And something she may want to share with others in the Administration

In the last few weeks, our Substack has strayed a bit from sentencing law and policy. We apologize to all the hard core sentencing fans who can’t get enough of the Guidelines. But for those of us who have devoted our careers to law, constitutional government, public policy, and public service — and for those others who just care about them — these last three weeks have been extraordinary times, and the actions of President Trump and his subordinates deserve a little more of our attention.

We will return to sentencing next week with an interview of a great public servant and scholar, Raquel Wilson. Stay tuned. But before we get to that, a quick note about one of the memos our new Attorney General, Pam Bondi, issued last week. I think the new AG may have been ill-served by her staff who drafted this particular memo, and perhaps some reader can bring this to her attention.

For those of you not following closely, after being sworn in at the White House by Justice Thomas last Wednesday, the new Attorney General issued a flurry of memos to all employees at the Department of Justice. “Flood the Zone” moved down Pennsylvania Avenue from the White House and the West Wing DoGE offices to the Main Justice Building. One of those memos was titled, “GENERAL POLICY REGARDING ZEALOUS ADVOCACY ON BEHALF OF THE UNITED STATES.” Here it is —

I was heartened when I first started reading the memo, because I think the Attorney General is right that it is a privilege to serve in the Justice Department and it is the job of attorneys who serve there to defend the interests of the United States. So far, so good. But then I got to the second sentence, and this is where I think her staff may have led her astray. “Those interests, and the overall policy of the United States, are set by the Nation’s Chief Executive, who is vested by the Constitution with all “[E]xecutive Power.”

It seems like her staff was quoting from Article II of the Constitution. But I’m afraid they may have inadvertently jumped right over Article I. It’s understandable, especially if they are Silicon Valley engineers, part of DoGE, and in a rush to break things.

Article I of the Constitution gives Congress the power to set a lot of policy for the United States. Like tax policy. And regulating commerce. Establishing “Rules of Naturalization.” Declaring war. Defining and punishing certain crimes. And lots more. Yes, with executive power comes setting certain policies, but only those consistent with the Constitution and laws enacted by Congress and in service of the requirement that the President take care that the laws be faithfully executed. (Emphasis added by me.)

Legislative power means setting policy too. And when Congress has spoken clearly within the powers granted to it by the Constitution, the President’s policy preferences must give way. Even if he doesn’t like the policy. Even if his best friend and the richest man on Earth doesn’t like the policy. Like with USAID. Or TikTok. Or civil service laws. The President doesn’t set overall policy in the system designed by our Founding Fathers. There are checks on presidential authority. And a balance of power among the branches of our government. Some people call it checks and balances.

There was a Supreme Court case I learned about when I first got to law school that sort of makes this point and that I suspect the AG’s staff may not have heard of in engineering school. It was a case where Congress had spoken clearly, but the President didn’t want his subordinates to do what Congress said those subordinates had to do under the law. In the end, the Supreme Court ruled that the President’s men (his cabinet was made up of all men at the time) had to do what the law required anyway. The President was not, the Court said, the last word on the overall policy of the United States.

The case started in 1800, when John Adams lost the presidential election to Thomas Jefferson. In early 1801, after the election and just before his term ended, Adams appointed some supporters to new judicial positions to stick it to Jefferson (I think President Trump would totally get that). The Senate confirmed Adams’ appointments, but the outgoing Secretary of State was unable to deliver all of the judges’ commissions before Jefferson was inaugurated. The clock ran out. Dang.

When Jefferson was inaugurated and took office, he directed his new Secretary of State, James Madison, not to deliver the commission that belonged to William Marbury, even though Marbury had been confirmed by the Senate and his commission had been signed. The case went to the Supreme Court (it turned out that the case should have been filed in a different court). And in his decision, Chief Justice Marshall explained that regardless of the will of the President, regardless of his desires, the President’s wishes had to give way to the law as Congress had passed it —

The commission being signed, the subsequent duty of the Secretary of State is prescribed by law, and not to be guided by the will of the President. He is to affix the seal of the United States to the commission, and is to record it.

This is not a proceeding which may be varied if the judgment of the Executive shall suggest one more eligible, but is a precise course accurately marked out by law, and is to be strictly pursued. It is the duty of the Secretary of State to conform to the law, and in this he is an officer of the United States, bound to obey the laws. He acts, in this respect, as has been very properly stated at the bar, under the authority of law, and not by the instructions of the President. It is a ministerial act which the law enjoins on a particular officer for a particular purpose.

The law required the Secretary of State to deliver the commission, even though the President didn’t want him to.

I can understand how the engineers may have thought that the national interests, “and the overall policy of the United States, are set by the Nation’s Chief Executive, who is vested by the Constitution with all [E]xecutive Power.” In a startup, this is often how things work; the founder and CEO sets overall policy.

I know it may be quite annoying when a Justice Department lawyer might push back against something the President wants because of the lawyer’s “personal judgment” about what the Constitution and laws require. It may be quite annoying when the Supreme Court pushes back against something the President wants. Just ask Presidents Obama and Biden about the “major questions doctrine.” [I wonder if that doctrine applies to shutting a whole Department or agency of government by a Special Government Employee acting surreptitiously. Hmmm. Or does it only apply when an administrative agency acts transparently and according to the procedures designed by Congress.] The Court can be a real stickler about the limits of presidential authority, at least when there’s a Democrat in the White House. It all might indeed delay some presidential want. But, fortunately or unfortunately, depending on your perspective, this is what the Constitution bequeathed to us requires.

If any of you see the AG, you may want to tell her not to forget that she swore to “support and defend the Constitution of the United States.” All of it. Including Article I. It’s on tape. She may want to revise her memo and maybe too, share some of this with others in the Administration.