William Marshall’s 2006 article in the Yale Law Journal analyzes both Feeney and Deukmejian and a series of cases that derived from them.  While numerous cases have been decided on this issue since that time, this article fairly balances the ccompeting pressures and places them in both a historic and contemporary context.   

Professor Marshall served as both the Deputy White House Counsel and as the Solicitor General for the State of Ohio.   

William P. Marshall, Break Up the Presidency? Governors, State Attorneys General and Lessons from the Divided Executive, 115 Yale L.J. 2445-2469 (2006)

115 Yale L.J. 2446

Yale Law Journal

Symposium 2006

The Most Dangerous Branch? Mayors, Governors, Presidents, and the Rule of Law: A Symposium on Executive Power Essays

BREAK UP THE PRESIDENCY? GOVERNORS, STATE ATTORNEYS GENERAL, AND LESSONS FROM THE DIVIDED EXECUTIVE

William P. Marshalla1

Copyright (c) 2006 Yale Law Journal Company, Inc.; William P. Marshall

ABSTRACT. Proponents of the unitary executive have contended that its adoption by the framers “swept plural executive forms into the ash bin of history.” Virtually every state government, however, has a divided executive in which executive power is apportioned among different executive officers independent of gubernatorial control. Focusing on the Office of the State Attorney General, this Essay examines the state experience with the divided executive and demonstrates that the model of an independent attorney general has proved both workable and effective in providing an intrabranch check on state executive power. The Essay then discusses the potential application of the model of the divided executive at the federal level. For a number of reasons, there has been a dramatic expansion of presidential power in the last half century with the result that Congress and the courts are often no longer able to constrain executive power in a timely and effective manner. In such circumstances, the only possible check on presidential power must come from within the executive branch. Yet the ability of the Federal Attorney General to provide such a check is, at best, illusory because, under the structure of the unitary executive, the Attorney General is subject to presidential control. Accordingly, the Essay questions whether the federal government should borrow from the state experience and make the Attorney General an independent officer.

a. The Argument from Ethics                                                                                                                                                                                                                                            2462

b. The Argument from Structure                                                                                                                                                                                                                                       2464

E. Lessons from the Divided Executive                                                                                                                                                                                                                           2467

II.                                AN INDEPENDENT FEDERAL ATTORNEY GENERAL?                                                                                                                                                                                     2469

A. The Increasingly Powerful (and Unchecked) Presidency                                                                                                                                                                                         2469

B. An Independent Federal Attorney General?                                                                                                                                                                                                               2471

1. Energy and Efficiency                                                                                                                                                                                                                                                    2473

2. Accountability                                                                                                                                                                                                                                                                 2475

3. Separation of Powers                                                                                                                                                                                                                                                      2476

4. Designing the Office of the Attorney General                                                                                                                                                                                                            2477

CONCLUSION                                                                                                                                                                                                                                                                   2478

*2448 INTRODUCTION

Proponents of the federal unitary executive have contended that its adoption by the Framers “swept plural executive

forms into the ash bin of history.”1 The federal model, however, has not been embraced by the states. The states, rather, employ a divided executive that apportions executive power among different executive officers not subject to gubernatorial control.2 In forty-eight states, for example, the Attorney General does not serve at the will of the Governor;3 and in many states, other executive branch officers such as the Secretary of State, Treasurer, and Auditor are also independent.4

The divided executive holds the theoretical advantages of dispersing power and serving as a check against any particular officer’s overreaching, virtues that might be seen as particularly appealing given concerns about executive branch excesses at the federal level. But the structure also potentially undermines the virtues of energy and efficiency, political accountability, and separation of powers that the Framers of the Federal Constitution associated with the unitary executive model. The question then arises as to whether the divided executive provides a viable and workable model for executive power implementation.

Focusing on the Office of the Attorney General, this Essay examines the divided executive. Part I examines the state experience. It provides a brief discussion of the history and evolution of the Office of the Attorney General, explores how the divided executive works in practice, and canvasses the cases that address how conflicts between governors and state attorneys general are resolved. Part I concludes that the divided executive model can foster an intrabranch system of checks and balances without undercutting the ability of the executive branch to function effectively. Part II then probes the question of

*2449 whether the federal government should borrow from the state experience and make the Federal Attorney General an independent officer.5 We live in an era of increasing (and, some would say, increasingly unchecked) presidential power. Part II accordingly considers whether the federal government should construct an intrabranch system of checks and balances, consistent with the state experience, in order to guard against executive branch excess.

I. THE STATE EXPERIENCE WITH THE DIVIDED EXECUTIVE: GOVERNORS AND STATE ATTORNEYS GENERAL

A.  Common Law Origins of the Office of the Attorney General

The roots of the Office of the Attorney General date back to the thirteenth century, when English kings appointed attorneys to represent regal interests in each major court or geographical area.6 Initially, the attorneys had limited powers, based either on the courts in which they appeared or the business that they were assigned to conduct.7 During the Middle Ages, however, this practice was superseded by the appointment of a single attorney with broad authority, including the power to appoint subordinates to carry out his responsibilities.8 The Attorney General emerged as chief legal adviser to the Crown and was often appointed for life tenure--a practice that continued until the reign of Henry VIII when it was changed to service at the pleasure of the Crown.9

Throughout the sixteenth and seventeenth centuries, the duties of the Attorney General continued to evolve and expand; with eminent tenants such as Edward Coke and Francis Bacon, the Office also continued to gain in prestige.10 The Attorney General was often summoned by writ of attendance to the House of Lords where he was consulted on bills and points of law.11 In 1673, he began to sit in the House of Commons, advising that body and *2450 assisting in the drafting of legislation.12 He also gave legal advice to the various departments of state and appeared for them in court.13

Importantly, during this period, the Attorney General established that his duty of representation extended to the public interest and not just to the ministries of government.14 In fact, by 1757, the Attorney General was able to refuse “to prosecute or to stop a prosecution on the orders of a department of the government, if he disapproved of this course of action.”15 Accordingly, the Attorney General became less the government’s lawyer and more an independent public official “responsible for justice.”16

B.  The State Attorneys General

The Office of the Attorney General was brought over to the colonies, where it was modeled after its English counterpart;17  and at the time of the founding, it existed in all thirteen of the original states.18 The terms of tenure varied considerably. North Carolina, for example, provided for a lifetime appointment by the legislature.19 In New York, the Attorney General was appointed by the Governor with the advice and consent of an Executive Council but he could be impeached and removed from office for “mal and corrupt conduct” only by a two-thirds vote of those present in the Assembly.20 Delaware allowed the Governor to appoint the Attorney General, upon confirmation by the Privy *2451 Council, for a term of five years.21 Rhode Island, alone among the original states, provided that the Attorney General would be popularly elected.22

The Framers of the Federal Constitution apparently placed the Attorney General under the control of the President,23 thereby adopting the model of the unitary executive, at least insofar as they did not directly create separate federal officers independent of the President.24 But the federal model proved to have very little influence over the development of state government. In fact, in the years following the ratification of the Federal Constitution, the states tended to reject the federal model because they were concerned with the concentration of too much power in one executive officer. Ohio, for example, in reaction to a territorial Governor who was perceived to be too autocratic, drafted its first state constitution in 1802 specifically to minimize the authority of the Governor by dispersing executive power over a range of independent executive branch officers.25

As the nation matured, many states created independent attorneys general and afforded the Office even greater autonomy by making it a popularly elected position. Again, the states’ purpose was to weaken the power of a central chief executive and further an intrabranch system of checks and balances. Thus, the Minnesota Supreme Court observed, in reference to the state’s 1851 constitution, that:

Rather than conferring all executive authority upon a governor, the drafters of our constitution divided the executive powers of state government among six elected officers. This was a conscious effort on

*2452 the part of the drafters, who were well aware of the colonial aversion to royal governors who possessed unified executive powers.26

Accordingly, as the nineteenth century unfurled, most new states provided in their constitutions for the popular election of an attorney general (and other executive branch officials) while many of the established states amended their constitutions to the same end. As a result of this trend, at present, forty-three state attorneys general are elected and forty-eight are free from

gubernatorial control.27 Notably, no state has reversed direction and made its Attorney General subservient to the Governor.28

The Office of the Attorney General has now evolved to have jurisdiction over a wide range of matters, although its specific powers vary considerably from state to state. In some states, for example, the Attorney General has statutory authority to bring consumer protection, environmental, civil rights, civil fraud, securities, and antitrust actions; some offices are also charged with maintaining oversight over public lands and charitable trusts.29 Many state attorneys general have significant authority to investigate both governmental and non-governmental misconduct. Attorneys general also play an important role in criminal law enforcement, with some state offices having direct prosecutorial powers or supervisory authority over law enforcement officers.30 Some state attorneys general additionally have broad common law powers to sue in the name of the public interest or in parens patriae.31 Finally, in virtually all states, the Attorney General is designated the state’s chief legal officer.32 The problem, as shall be discussed, however, is that no matter how extensive the Attorney General’s powers have become, they still must be reconciled with *2453 those of the Governor, who, in virtually every state, enjoys the even more expansive charge of assuring that the laws are faithfully executed.33

C.  Governors and State Attorneys General

Not surprisingly, a divided executive creates substantial opportunities and incentives for conflict.34 First, there are matters of simple politics. In states where the Governor and the Attorney General are independently elected, the two officers may come from different political parties with diametrically opposed partisan agendas. If so, they can be expected to be in constant political opposition to each other. Moreover, even when from the same party, the two officers can, and often are, divided by personal rivalries or ideological differences. And even when the two officers agree on a particular issue, they may compete with each other to be the most aggressive in addressing the issue to curry favor with a particular constituency.35 Add to this the political reality that the Office of the Attorney General has long been seen by many of its occupants as a stepping stone to the Governor’s office36 and the blueprint for confrontation and conflict is manifest. Finally, disputes may occur because of the differing visions the officers may have concerning each other’s roles. Governors tend to view attorneys general as subservient officers. But most attorneys general, while acknowledging some obligation to represent the Governor and the other parts of state government, tend to perceive their overriding obligation to be to the broader concerns of representing the state, the law, and the public interest.37

*2454 What is remarkable, then, in reviewing the state experience, is that debilitating conflict has not materialized. This is not to say that serious disputes have never occurred or that governors have never complained about having to deal with independent attorneys general (or vice versa). Certainly they have. And it is also true that the divided executive has occasionally been the target of reforms that would make the Attorney General subject to gubernatorial appointment and removal.38 But history suggests that both governors and attorneys general have generally learned to cooperate effectively within a divided executive framework.

The reasons why cooperation, rather than conflict, has been the rule are not complex. On one side, the Governor, even if he believes he is unduly constrained by an attorney general’s position, has the general incentive to comply because he may not want to be seen as defying the Attorney General on matters for which the public expects that the Attorney General, as chief legal officer, will have greater expertise. A Governor who rejects the Attorney General’s position therefore risks expending political capital by appearing reckless, if not lawless. Moreover, he risks even greater vulnerability on that point if his legal position eventually fails in court.

On the other side, the Attorney General may also be restrained from overreaching because she is aware that her role is, in large part, defined by public expectations and that her primary obligation is to defend, not contradict, the policies of state officers or agencies, except when those policies violate the law.39 Indeed, this understanding is so prevalent that virtually all  of the state attorneys general have institutionalized it in in-house memoranda.40

Many of the more powerful incentives for cooperation, moreover, are mutual. To begin with, as repeat and interdependent players, both sides have the incentive to maintain a functioning relationship to ensure they can fulfill the duties of their respective offices. They may also feel significant political pressure to work together because it will be harmful to both if they are seen as unwilling or unable to work across political divides. The electorate, after all, does not tend to reward those who bring government to a standstill. Further, both sides may be motivated to come together because reaching internal consensus may fortify their actions against third parties. When both the Governor and the Attorney General agree that a course of action

is permissible, the authority behind that position is greater than when either party reaches *2455 that conclusion alone. Finally, and perhaps unduly idealistically, the Governor and Attorney General may be united by a common sense of duty. As one court has noted, a divided executive requires the executive officers to “combine and cooperate (even if they have differing policy views and perspectives) to provide an efficient and effective executive branch of government.”41 It may be that state governments traditionally have taken that duty seriously.

D.  The Cases Addressing the Relative Powers of Governors and Attorneys General

Not all disputes between governors and attorneys general regarding their respective powers are resolved internally and some, not surprisingly, proceed to litigation. The relatively few cases addressing intra-executive branch disputes, however, are significant for our purposes in that they provide useful insight into the types of legal conflicts that can be triggered by a divided executive, how courts might approach these conflicts, and, by implication, whether a divided executive is a viable and sustainable structure.42 These cases can be broken into three categories: (1) cases in which the Attorney General chooses to exercise independent legal judgment and either refuses to represent the Governor (or other executive officers or agencies) or takes an opposed position in litigation; (2) independent actions brought by the Attorney General directly against the Governor or other members of the executive; and (3) cases raising the issue of whether the Attorney General has the right to initiate enforcement actions against private parties without the Governor’s approval or in direct contravention of the Governor’s wishes. This Section first canvasses the cases within each category and then evaluates whether the approaches utilized by the courts are effective in furthering the purposes the divided executive is designed to achieve.

1.  The Power of the Attorney General To Exercise Independent Legal Judgment in Litigation

The first and most common category of cases addresses the right of the Attorney General to refuse to take the Governor’s (or other executive officer’s *2456 or agency’s) position in court. Must the Attorney General represent the position of the Governor on a disputed legal issue, or is she free to substitute her own independent legal judgment as to the best interests of the state? The majority rule favors attorney general independence.43 Her primary duty, as the state’s chief law officer, is to represent the public interest and not simply “the machinery of government.”44

In Secretary of Administration & Finance v. Attorney General,45 for example, the Massachusetts Supreme Court held that the Attorney General can refuse to appeal an adverse decision despite the contrary wishes of his executive agency client: “[W]hen an agency head recommends a course of action, the Attorney General must consider the ramifications of that action on the interests of the Commonwealth and the public generally, as well as on the official himself and his agency.”46 An Alabama case, Ex parte Weaver,47 states this principle even more broadly:

The most far-reaching of the attorney general’s common-law powers is the authority to control litigation involving state and public interests. It is generally accepted that the attorney general is authorized to  bring actions on the state’s behalf. As the state’s chief legal officer, the attorney-general has power, both under common law and by statute, to *2457 make any disposition of the state’s litigation that he deems for its best interest.48

Not all states, to be sure, adopt this reasoning. In Manchin v. Browning,49 the West Virginia Supreme Court granted a writ of mandamus requiring the Attorney General to represent the Secretary of State in federal court over the Attorney General’s objection. The court noted that the Attorney General was in a traditional attorney-client relationship with other state executive officers and could not decline representation.50 Thus, the Attorney General’s authority to manage the litigation was limited to developing the case “so as to reflect and vindicate the lawful public policy of the officer he represent[ed].”51

In Santa Rita Mining Co. v. Department of Property Valuation,52 the Attorney General appealed an adverse property tax judgment against the express wishes of his agency client. The defendants successfully petitioned for a special action to dismiss the pending court of appeals action; the Arizona Supreme Court held that the Attorney General lacked the authority to maintain the appeal without the approval of his agency client. The court concluded that the Governor alone was empowered to protect the public interest and ensure that the laws are faithfully executed.53 Accordingly, the Attorney General was bound to represent the position of the executive branch and not his own views of the public interest in order to preserve the appropriate division of powers within the executive branch.

In one unusual case, the court found that the Governor and the Attorney General had concurrent powers. The underlying litigation in Perdue v. Baker54 involved a challenge to the State of Georgia’s reapportionment plan. A lower federal court held that the plan violated the Voting Rights Act. Before the appeals were completed, the Georgia legislature passed a back-up plan to implement if the courts continued to invalidate the original plan. Apparently *2458 favoring the back-up plan over the original, the Governor sued the Attorney General seeking to force him to drop his appeal to the U.S. Supreme Court. The Georgia Supreme Court rejected the Governor’s petition. Explaining that its decision was based in part upon the policy of promoting a system of checks and balances between the two officers, the court held that both the Governor and the Attorney General were entitled to represent the state before the Georgia Supreme Court.55

2.  The Power of the Attorney General To Sue the Governor or Other Executive Officers

The second category of cases comprises those in which the Attorney General sues the Governor or other executive officers. For example, an issue occasionally arises regarding the power of the Attorney General to challenge the constitutionality of a state enactment by suing the state executive charged with its enforcement,56 including the Governor when appropriate.57 In such cases, the majority rule vests power in the Attorney General to bring the action.58 Thus, in People ex rel. Salazar v. Davidson,59 a Democratic Attorney General contended that a redistricting plan signed by the Republican Governor violated the state constitution and sued the Secretary of State to invalidate the plan. The Colorado Supreme Court affirmed the Attorney General’s prerogative, holding that “the Attorney General must consider the broader institutional concerns of the state even though [those] concerns [are] not shared by” other executive officers.60

Case law also supports the power of the Attorney General to sue the Governor over matters involving the Governor’s own actions. In State ex rel. *2459 Condon v. Hodges,61 the South Carolina Supreme Court allowed the Attorney General to sue the Governor for attempting to circumvent the provisions of an appropriations bill. Rejecting the argument that a lawyer cannot sue his own client, the court held that the Attorney General has a dual role as the Governor’s attorney and as the executive official charged with vindicating wrongs against the citizens of the state, with the power to seek legal redress for separation-of-powers violations by other state executive officers.62

Although there are few cases in which the Attorney General directly sues the Governor, Hodges is not the only example. The Mississippi Supreme Court has allowed the Attorney General to intervene on behalf of plaintiff legislators seeking to declare that a Governor’s partial vetoes of certain bills were unconstitutional.63 The Kentucky Supreme Court, although holding that the Attorney General had not justified his claim for injunctive relief on the merits, allowed him to bring an action to enjoin the Governor from being sworn in and acting as a member of the state university board of trustees pursuant to the Governor’s own self-appointment.64 And the Florida Supreme Court allowed the Attorney General to bring a quo warranto action against the Lieutenant Governor seeking his removal because he lacked necessary qualifications.65

Nevertheless, the right of the Attorney General to sue executive branch officers or agencies has not been universally approved. In Arizona State Land Department v. McFate,66 for example, the Arizona Supreme Court held that the Attorney General could not bring suit against a state agency to enjoin its sale of public lands. The court explained that “the Governor alone, and not the Attorney General, is responsible for the supervision of the executive department and is obligated and empowered to protect the interests of the *2460 people and the State.”67 Similarly, in Hill v. Texas Water Quality Board,68 the Texas Court of Civil Appeals held that the Attorney General lacked the authority to bring suit to set aside an agency rule, finding no independent authority for the Attorney General to represent the public interest against the specific interests of his agency client.

3.  The Power of the Attorney General To Initiate Enforcement Actions Against Private Parties

The final category of cases concerns the power of the Attorney General to proactively initiate civil or criminal actions against private parties. This power, needless to say, may have a profound effect on a state’s policy agenda. For example, a governor who promises to create a pro-business climate could be hampered in achieving this result if the state’s attorney general is aggressive in maintaining consumer protection or antitrust actions against the state’s industries. Similarly, a governor who runs for office as an anti-pornography crusader will be seriously limited in his ability to deliver on this issue if the state’s attorney general refuses to bring pornography prosecutions.

Whether the State Attorney General has the power to initiate criminal or civil actions independent of the Governor is largely

a function of statutory authority and, particularly in civil matters, whether the Attorney General is deemed to enjoy common law powers. Thus, in Ohio v. United Transportation, Inc.,69 the court held that, because he had common law authority, the Attorney General of Ohio could bring an antitrust action under state and federal law against local taxicab companies without the approval of either the Governor or the General Assembly.70 The court stated that “the broad inherent common law powers of the attorney general in . . . contesting infringements of the rights of the general public” had been long recognized.71 This common law power, moreover, is quite broad. As the court held in Florida ex rel. Shevin v. Exxon *2461 Corp.,72 the Attorney General is entrusted, under the common law, with “wide discretion” and a “significant degree of autonomy” in determining what is in the public interest.73 Indeed, the Attorney General’s common law authority is so unfettered that it may allow her to bring suits in the public interest even when other executive officers or agencies oppose such actions.74

In other states, however, the courts have held that the Attorney General’s powers are far more circumscribed. In State ex rel. Haskell v. Huston,75 for example, the Oklahoma Supreme Court held that the Attorney General must have the Governor’s permission to maintain a civil nuisance action against an oil company because it is within the Governor’s responsibility to see that the laws are “faithfully administered.”76 Moreover, in a few states, not only is the Attorney General prohibited from initiating actions without the Governor’s approval, but the Governor can also compel the Attorney General to prosecute an action even when the Attorney General does not want to proceed.

4.  The Cases in Theoretical Perspective

Some of the results in the cases reviewed in the previous Subsections can be explained simply as the product of statutory interpretation by the courts. The McFate decision, for example, was based on the relatively broad powers accorded to the Governor under the Arizona Constitution compared to the narrow grant of authority vested in the Attorney General.77 In other cases, such as Shevin, when the constitutional and statutory principles were less explicit, the courts had to rely on more general principles.78

*2462 But whether derived from constitutional provision, statutory text, or judicial gloss, two general approaches have emerged in deciding how the powers of the Governor and the Attorney General are to be allocated in a divided executive.  The first, based on ethics, suggests that the conflicts should be resolved in accord with the principles of the attorney-client relationship. The second, based on the structure of the divided executive, looks to the policies and understandings underlying that model as the basis for resolution. Each will be discussed in turn.

a.  The Argument from Ethics

The leading case in support of the position that an attorney general is bound by the principles of the attorney-client relationship to represent the interests of his state officer or agency client is People ex rel. Deukmejian v. Brown.79 As the California Supreme Court stated in that case, there is nothing unique to the duties of the Attorney General that “justif[ies] relaxation of the prevailing rules governing an attorney’s right to assume a position adverse to his clients or former clients.”80 The approach taken in Deukmejian has an initial, intuitive attraction. After all, if the Attorney General is the lawyer and the Governor the client, the normal expectation would be that the former should advance the latter’s legal positions.81 In fact, however, the attorney-client relationship approach is easily dismissed.82

To begin with, this approach ignores the fact that the Attorney General’s role is significantly more complex than that of a private attorney. Since seventeenth-century England, the Attorney General has generally been deemed to represent the “state” or public interest and not only the machineries of government.83 Moreover, in the modern era of expansive government, the Attorney General is also often charged with representing a wide range of state *2463 officers and agencies, many of whom have positions diametrically opposed to each other. Accordingly, and in recognition of this reality, most courts have held that an attorney general does not violate ethical rules when she engages in the dual representation of competing state entities.84 It  is therefore not a giant step to conclude that dual representation of a state entity and the state or public interest is also not an ethical violation and, indeed, a majority of jurisdictions have so held.85

Furthermore, the nature of an independent attorney general belies the conclusion that an attorney general should be ethically bound to represent her officer client. Ethical rules do not provide an attorney with much room to reject the position of her client86 and, if they in fact limited her authority, there would be little reason for an attorney general to have independent  status. Certainly, an attorney general, ethically bound to represent a governor, would not serve as a check on a governor who

was intent on exceeding his constitutional or statutory authority. At best, she would be able only to refuse to facilitate the governor’s actions.87

Finally, ethical concerns also weigh against binding an attorney general by the attorney-client relationship. As the Colorado Supreme Court noted in People ex rel. Salazar v. Davidson,88 imposing a rigid obligation on the Attorney General to advance the executive’s positions can undermine the Attorney General’s ethical obligations to uphold the law and constitution when the *2464 Governor seeks to defend a measure that the Attorney General believes is unlawful.89

b.  The Argument from Structure

The structural approach to disputes between the Governor and the Attorney General focuses on the respective roles of the two officers in the divided executive and questions which role deserves particular deference in a specific context. In certain circumstances, specifically with respect to policy judgments, a structural analysis supports the authority of the Governor (or other executive officer or agency) over that of the Attorney General. Consider Motor Club of Iowa v. Department of Transportation of Iowa,90 in which a motor club challenged the validity of a state agency rule establishing a sixty-five foot length limitation for trucks.91 After losing in the trial court, the agency decided against an appeal because a majority of  agency commissioners no longer supported the length limit. The Attorney General, however, attempted to pursue the appeal without agency approval. The court held that the Attorney General did not have the authority to proceed without agency authorization.

From a structural perspective the decision makes sense. After all, if the agency no longer supports its own rule, why should the Attorney General, the chief legal officer, be able to substitute her policy judgment for that of the entity empowered to make the policy decisions?92 Similarly, if the Governor is the officer charged with setting state policy, it makes sense that the Attorney General should defer to the Governor’s (non-legal) policy judgments.

The structural argument, however, favors the Attorney General in matters involving legal, as opposed to policy, judgments.93 Presumably, a primary reason for having an independent attorney general is to allow for independent legal judgment. Empowering the Governor to be the final authority on legal decisions would make this independence a nullity (as well as, nonsensically *2465 enough, vesting in a non-legal officer the power to have the final say on legal meaning).94

To be sure, the line between legal judgment and policy decision is sometimes blurred. (Some might even suggest that all law is policy-based.95) But even if all legal decisions have some policy overtones, as Motor Club of Iowa suggests, not all policy decisions involve law. The truly difficult cases, in this respect, are those in the third category discussed in this Section, dealing with the Attorney General’s power to institute lawsuits against private parties on behalf of the state. No doubt the decision to bring cases such as the antitrust action in United Transportation96 or the civil nuisance action in Haskell97 involves the exercise of legal judgment. But it also involves non-legal considerations that can be integral to a state’s overall policy agenda. Accordingly, whether final authority for such decisions should be deemed to be in the province of the Governor, the Attorney General, or both, may depend on the particular context, or, as is often the case with statutory enforcement matters, legislative intent.

The structural argument more consistently favors the Attorney General in the first category of cases previously discussed, those concerning the power of the Office to refuse to take the position of executive branch officers or agencies in ongoing litigation. First, assuming the Attorney General’s actions are based upon legal, rather than policy, judgments, her authority to refuse to take the executive branch client’s position reflects her structural role as the state’s chief legal officer. Second, recognizing her prerogatives in this respect also furthers the policy of having an executive officer whose fealty extends primarily to the rule of law rather than to the litigation needs of any particular administration.98 Third, allowing the Attorney General to oppose the Governor or other executive branch officer in court reflects another benefit of the divided executive--it promotes a fuller and more thorough examination of intra- *2466 executive disputes, both in court and in pre-litigation consultation, than would occur if the Governor were empowered to impose his position unilaterally.99 Indeed, the values of intrabranch litigation have been implicitly recognized even within the federal executive in cases like United States v. Nixon100 and Tennessee Valley Authority v. United States EPA,101 where courts have refused to dismiss intrabranch litigation as non-justiciable on grounds that the requisite adversarial component was missing when the U.S. government was effectively suing itself.102 Rather, the courts heard both sides of the issues involved, presumably reaching a more considered judgment than might have occurred if the matters had been decided entirely within the executive branch.103 The results in state cases

involving intrabranch disputes, one would suspect, would be similarly informed.

Finally, the structural argument plays its clearest role in supporting the Attorney General’s power in the second category of cases, those in which she sues another part of the executive branch for exceeding its authority. Indeed, if the purpose of the divided executive is to create an intrabranch system of checks and balances,104 there is no better mechanism to achieve this result than dividing executive power between a chief executive and a chief legal officer. After all, who other than the state’s chief legal officer is better poised to make the judgment of whether a state officer has exceeded his legal and constitutional authority? (Moreover, because the Attorney General is further removed than the Governor from the political pressures and demands that face *2467 state government,105 she may be able, other things being equal, to approach the issues regarding the bounds of authority more dispassionately.106)

The most compelling structural argument supporting the Attorney General’s authority to police the boundaries of executive power, however, rests in the inherent weaknesses of the alternative solution--specifically with the lack of inherent checks that would occur in a system in which the Governor had the final say. For example, in State ex rel. Condon v. Hodges,107 the  South Carolina Supreme Court permitted the Attorney General to sue the Governor for circumventing the provisions of an appropriations bill. Had the court allowed the Governor to quash the action, the advantages of the divided executive would have been eviscerated because the Governor would effectively have become the judge of his own authority. There would be neither check nor balance in such a structure.108

E.  Lessons from the Divided Executive

The preceding Sections suggest that the state experience with the divided executive and the independent Attorney General hold a number of lessons. First, as its architects intended, the divided executive model disperses power109 and checks executive branch excess.110 Second, under the divided executive, the Office of the Attorney General is, or can be, appropriately independent of gubernatorial control. Neither ethical constraints nor structural concerns, *2468 properly understood, demand that the Attorney General exclusively represent the Governor’s interests. Third, by insulating the Attorney General’s legal authority from gubernatorial control, the divided executive protects against executive branch overreaching by dedicating an executive officer to uphold the rule of law. Additionally, as the example of intrabranch litigation suggests, attorney general independence promotes fuller decision-making before governmental action by assuring consideration of a wider range of concerns than if the Governor acted alone.111 Fourth, the divided executive can be constructed to accommodate a variety of interests. A state, for example, may protect the right of an attorney general to exercise independent legal judgment against the Governor’s position in a particular matter while still requiring the Attorney General to advance the interests of the Governor when her disagreement is based on pure policy112 or upon any other factor deemed to fit best within the final authority of the Governor. In this way, the Governor’s prerogatives can be accommodated as well.

This then leads to a final lesson. The proponents of the federal unitary executive have argued that other structures are destined to fail because they would lead to weakened executives fraught with internal conflict and lack of accountability. The state experience has shown, however, that this has not occurred. After all, the divided executive has been the rule, rather than the exception, in virtually every state for most of the nation’s history, yet there is little to suggest that it has created endemic dysfunction. The final lesson from the state experience with the divided executive, in short, is that, despite the doubts of the unitarians, the structure has been proven to work. The next Part, accordingly, will ask whether the model may also be appropriate for the federal government.

***

CONCLUSION

The debate over the unitary executive has tended to disregard the state experience, although virtually every state government has a divided executive structure. As the state experience demonstrates, a divided executive presents its share of concerns. Proponents of the unitary executive correctly point out that the structure can impose inefficiency and coordination costs. But the structure offers benefits as well. State attorneys general who are not under the control of governors are freer to offer objective advice and better able to act in accordance with the rule of law rather than in the pursuit of a particular political

agenda. An independent attorney general’s ability to do so without imposing substantial burdens on the efficacy of state government makes the model an attractive candidate for adoption at the federal level. The current presidency has the potential of becoming a law unto itself as the expediency and demands of modern government have, in some critical areas, freed the President from the effective oversight of the other two branches. At the same time, the President’s ability to control the Office of the Attorney General makes him effectively the only arbiter of the legality of his actions. An independent attorney general, in the form of the state divided executive, may therefore be an *2479 appropriate model from which to reconstruct a workable system of intrabranch checks and balances.

Footnotes

a1                 AUTHOR. William R. Kenan Distinguished Professor of Law, University of North Carolina at Chapel Hill. I am grateful to Elizabeth Ferrill and Tyler Tarrant for their research assistance. I would also like to thank Hal Krent, Jim Tierney, and (especially) Kara Millonzi for their helpful comments and suggestions.

1                   Steven G. Calabresi, Some Normative Arguments for the Unitary Executive, 48 Ark. L. Rev. 23, 25 (1995).

2                   Patrick C. McGinley, Separation of Powers, State Constitutions & the Attorney General: Who Represents the State?, 99 W. Va. L. Rev. 721, 722 (1997).

3                   The Attorney General is independently elected in forty-three states and is appointed by the legislature in Maine and the Supreme Court in Tennessee. Council of State Gov’ts, The Book of the States 268 (2005). In New Jersey, New Hampshire, and Hawaii, the Attorney General is appointed by the Governor but is not removable at will. See Haw. Const. art V, § 6; N.H. Const. pt. 2, arts. 46, 47, 73; N.J. Const. art. V, § IV, paras. 3, 5. Only in Alaska and Wyoming does the Attorney General serve entirely at the Governor’s behest. See Alaska Const. art. III, § 25; Wyo. Stat. Ann. § 9-1-601 (2005).

4                   See Daniel R. Grant & Lloyd B. Omdahl, State and Local Government in America (5th ed. 1986).

5                   This Essay assumes, for purposes of discussion, that making the Office of the Attorney General independent, either by election or appointment, would require a constitutional amendment. See Proposals Regarding an Independent Attorney General, 1 Op. Off. Legal Counsel 75, 77-78 (1977).

6                   6 William Holdsworth, A History of English Law 459 (2d ed. 1937).

7                   Id.

8                   Id. at 460-61.

9                   Id.

10                Rita W. Cooley, Predecessors of the Federal Attorney General: The Attorney General in England and the American Colonies, 2 Am. J. Legal Hist. 304, 307 (1958).

11                6 Holdsworth, supra note 6, at 463.

12                Id. at 465.

13                Cooley, supra note 10, at 307.

14                12 William Holdsworth, A History of English Law 305 (1st ed. 1938).

15                Id.

16                Nat’l Ass’n of State Attorneys Gen., State Attorneys General: Powers and Responsibilities 6 (Lynne M. Ross ed., 1990) [hereinafter State Attorneys General].

17                Daniel J. Meador, The President, the Attorney General, and the Department of Justice 5 (1980). Notably, the Crown granted colonial attorneys general the same powers and duties as the attorneys general had at home. The effectiveness of the colonial attorneys general, however, was far more limited than their English counterparts owing to their significant lack of resources.  State Attorneys General, supra note 16, at 6.

18                See generally Oliver W. Hammonds, The Attorney General in American Colonies, in 2 Anglo-American Legal History Series, ser. 1, 3 (Paul M. Hamlin ed., New York Univ. Sch. of Law 1939).

19                N.C. Const. of 1776, art. XIII.

20                N.Y. Const. of 1777, arts. XXIII, XXXIII.

21                Del. Const. of 1776.

22                This practice dated back to 1650. See R.I. Sec’y of State, Office of the Attorney General, http://www.state.ri.us/govtracker/index.php? page=DetailDeptAgency&eid=3877 (last visited Aug. 5, 2006). The Office of the Attorney General was formally established by constitutional provision in 1842. R.I. Const. of 1842, art. VIII, § 1.

23                As will be discussed subsequently, it is somewhat ambiguous whether the Office was originally intended to be subject to presidential control. See infra notes 126-127 and accompanying text.

24                The question of whether Congress could create officers or agencies not subject to presidential control has been, of course, the dominant issue in the unitary executive debate. See, e.g., Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power To Execute the Laws, 104 Yale L.J. 541 (1994); Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1, 5 (1994).

25                Steven H. Steinglass & Gino J. Scarselli, The Ohio State Constitution: A Reference Guide 163 (2004). Interestingly, the Attorney General was not one of the executive officers established in Ohio’s first constitution and was created first by statute in 1848 and then by constitutional provision in 1851. Id. at 163-64.

26                State ex rel. Mattson v. Kiedrowski, 391 N.W.2d 777, 782 (Minn. 1986).

27                See supra note 3.

28                Scott M. Matheson, Jr., Constitutional Status and Role of the State Attorney General, 6 U. Fla. J.L. & Pub. Pol’y 1, 28 (1993).

29                The authority of attorneys general in specific subject areas is catalogued in State Attorneys General, supra note 16.

30                Id. at 278-79.

31                See, e.g., In re Cardizem CD Antitrust Litig., 218 F.R.D. 508, 521 (E.D. Mich. 2003) (describing variations in the common law powers of attorneys general across states). Not every state, however, invests the Attorney General with such authority. See, e.g., Blumenthal v. Barnes, 804 A.2d 152, 165 (Conn. 2002) (holding that the Connecticut Attorney General does not have common law powers).

32                See, e.g., Ariz. Rev. Stat. Ann. § 41-192(A) (2006); Colo. Rev. Stat. § 38-13-102(2.5) (2005); Ga. Code Ann. § 45-15-10 (2006);

Miss. Code Ann. § 7-5-1 (2006); see also State Attorneys General, supra note 16, at 40.

33                See, e.g., Ill. Const., art. 5, § 8 (“The Governor shall have the supreme executive power, and shall be responsible for the faithful execution of the laws.”); Mont. Const. art. 6, § 4 (same); Pa. Const. art. 4, § 2 (same).

34                Thad L. Beyle, Governors, in Politics in the American States 180, 192 (Virginia Gray et al. eds., 4th ed. 1983) (“These two offices [the Governor and the Attorney General] ... have the potential for built-in conflict at several levels, from politics to policy to administration.”).

35                See, e.g., Al Baker, Pataki, Environmentalist? Little and Late, Critics Say, N.Y. Times, Feb. 18, 2003, at B2.

36                See William N. Thompson, Should We Elect or Appoint State Government Executives? Some New Data Concerning State Attorneys General, 8 Midwest Rev. Pub. Admin. 17, 29-31 (1974).

37                See Matheson, supra note 28, at 12 & n.57 (1993) (citing the articles of two state attorneys general, William A. Saxbe, Functions of the Office of Attorney General of Ohio, 6 Clev.-Marshall L. Rev. 331, 334 (1957), and Lacy H. Thornburg, Changes in the State’s Law Firm: The Powers, Duties and Operations of the Office of the Attorney General, 12 Campbell L. Rev. 343, 359 (1990)).

38                See, e.g., id. at 28 n.148.

39                James E. Tierney, The State Attorney General: Who Is the Client? (Sept. 1, 1995),http://c-128.port5.com/articles/art2.html.

40                Id.

41                State ex rel. McGraw v. Burton, 569 S.E.2d 99, 109 (W. Va. 2002) (emphasis added).

42                The cases may also have implicit significance in that the very fact that courts have been able to entertain intrabranch disputes reinforces the viability of the divided executive by suggesting that an effective judicial backstop may be available to resolve any potentially debilitating conflicts.

43                Manchin v. Browning, 296 S.E.2d 909, 923 (W. Va. 1982) (Neely, J., dissenting) (urging that the rule in the majority of jurisdictions be adopted by the court).

44                Commonwealth ex rel. Hancock v. Paxton, 516 S.W.2d 865, 867 (Ky. 1974); see also id. at 868 (“[I]n case of a conflict of duties the Attorney General’s primary obligation is to the Commonwealth, the body politic, rather than to its officers, departments, commissions, or agencies.”). The Hancock court noted that at common law the Attorney General represented the king, “he being the embodiment of the state. But under the democratic form of government now prevailing the people are the king ” Id. at 867

(internal citation omitted); see also Sandersen v. Blue Cross & Blue Shield of Ala. (Ex parte Weaver), 570 So. 2d 675, 684 (Ala. 1990) (holding that the Attorney General had the authority to dismiss legal proceedings over the objection of an executive agency).

45                326 N.E.2d 334 (Mass. 1975).

46                Id. at 338. Two years later, in Feeney v. Commonwealth, 366 N.E.2d 1262, 1266-67 (Mass. 1977), the Massachusetts Supreme Court came to the same result when the parties’ intentions were reversed, holding that the Attorney General could prosecute an appeal even when his executive agency client objected.

47                570 So. 2d 675.

48                Id. at 677 (internal citations and quotations omitted). Ex parte Weaver also suggests that the Attorney General should allow the state agency to employ counsel to represent its position if the Attorney General refuses to do so. Id. at 678-79.

49                296 S.E.2d 909, 921 (W. Va. 1982). The Manchin court did acknowledge, however, that its decision did not follow the majority rule. Id. at 921 n.6.

50                Id. at 919-21; see also Chun v. Bd. of Trs., 952 P.2d 1215, 1234 (Haw. 1998) (holding that when the Attorney General’s views differ from those of her agency client, the Attorney General cannot control the litigation “as to advance her view of the ‘public welfare”’).

51                Manchin, 296 S.E.2d at 921.

52                530 P.2d 360 (Ariz. 1975).

53                Id. at 362 (citing Ariz. State Land Dep’t v. McFate, 348 P.2d 912 (Ariz. 1960)).

54                586 S.E.2d 606 (Ga. 2003).

55                Id. at 610.

56                See, e.g., Commonwealth ex rel. Hancock v. Paxton, 516 S.W.2d 865, 867-68 (Ky. 1974) (“[T]he duty of the Attorney General to uphold the Constitution surely embraces the power to protect it from attacks in the form of legislation as well as from attacks

by way of lawsuits by other persons against state officers or agencies.”).

57                Cf. State ex rel. Douglas v. Thone, 286 N.W.2d 249 (Neb. 1979) (allowing, without discussion, the Attorney General to bring an action against the Governor to enjoin the implementation of a statute).

58                Hansen v. Barlow, 456 P.2d 177, 177-78 (Utah 1969). But cf. State v. Burning Tree Club, 481 A.2d 785 (Md. 1984) (holding that

the Maryland Attorney General does not have common law, statutory, or state constitutional authority to initiate a declaratory judgment action challenging the constitutionality of a state statute).

59                79 P.3d 1221 (Colo. 2003).

60                Id. at 1231.

61                562 S.E.2d 623 (S.C. 2002).

62                Id. at 627-28.

63                Fordice v. Bryan, 651 So. 2d 998 (Miss. 1995). Even more recently, the Mississippi Attorney General sued to block the Governor’s cut-back on Medicaid. See James Dao, In Mississippi, Setting the Pace for a New Generation of Republican Governors, N.Y. Times, Feb. 8, 2005, at A18.

64                Commonwealth ex rel. Cowan v. Wilkinson, 828 S.W.2d 610 (Ky. 1992).

65                State ex rel. Attorney-General v. Gleason, 12 Fla. 190 (1868); cf. United States v. Troutman, 814 F.2d 1428, 1438 (10th Cir. 1987) (holding that it was proper for the Attorney General to assist federal officials in the prosecution of an executive officer because “a state attorney general has a primary responsibility to protect the interests of the people of the state and must be free to prosecute violations of those interests by a state officer regardless of his representation of the state officer in past or pending litigation”).

66                348 P.2d 912 (Ariz. 1960).

67                Id. at 918. See also Ariz. Const. art. V, §§ 1, 4 (charging the Governor with the faithful execution of the laws and stating that the duties of the Attorney General shall be as prescribed by law).

68                568 S.W.2d 738 (Tex. Civ. App. 1978).

69                506 F. Supp. 1278 (S.D. Ohio 1981).

70                Id.; see also Florida ex rel. Shevin v. Exxon Corp., 526 F.2d 266 (5th Cir. 1976) (affirming the power of the Attorney General to maintain an antitrust suit against various oil companies).

71                United Transp., 506 F. Supp. at 1281-82; see also In re Cardizem CD Antitrust Litig., 218 F.R.D. 508, 520-21 (E.D. Mich. 2003) (“Plaintiff States, by their Attorneys General, had the authority to settle and release indirect purchaser claims in a parens patriae or other representative capacity.”).

72                526 F.2d at 266.

73                Id. at 268-69, 271.

74                See id. at 272; see also State v. Tex. Co., 7 So. 2d 161, 162 (La. 1942) (holding that the Attorney General “is not required to obtain the permission of the Governor or any other executive or administrative officer or board in order to exercise” his right to sue on behalf of the state); State ex rel. Bd. of Transp. v. Fremont, E. & M.V.R. Co., 35 N.W. 118, 120 (Neb. 1887) (holding that the Attorney General could proceed with the prosecution of a case over the objections of the executive agency involved in the suit).

75                97 P. 982 (Okla. 1908).

76                Id. at 985-87 (concluding that the Governor has the sole and exclusive right to exercise executive discretion to determine if a suit should be brought on behalf of the state, and that the Attorney General cannot interfere with the Governor’s discretion); see also State ex rel. Cartwright v. Ga.-Pac. Corp., 663 P.2d 718 (Okla. 1982) (noting that the Attorney General must seek the Governor’s permission to initiate a suit).

77                Ariz. State Land Dep’t v. McFate, 348 P.2d 912, 912 (Ariz. 1960).

78                526 F.2d at 266.

79                624 P.2d 1206 (Cal. 1981). Deukmejian, although the leading case in support of this position, is actually somewhat unusual in that the Attorney General had previously counseled the state agency about how to implement the law at issue.

80                Id. at 1209; see also Tice v. Dep’t of Transp., 312 S.E.2d 241, 246 (N.C. Ct. App. 1984) (holding that the Attorney General is bound by rules governing the attorney-client relationship); Manchin v. Browning, 296 S.E.2d 909, 920 (W. Va. 1982) (same).

81                See Bill Aleshire, Note, The Texas Attorney General: Attorney or General?, 20 Rev. Litig. 187 (2000).

82                For a thoughtful discussion of the ethical issues involved, see Justin G. Davids, State Attorneys General and the Client-Attorney Relationship: Establishing the Power To Sue State Officers, 38 Colum. J.L. & Soc. Probs. 365 (2005).

83                See supra notes 14-16 and accompanying text.

84                E.g., Conn. Comm’n on Special Revenue v. Conn. Freedom of Info. Comm’n, 387 A.2d 533 (Conn. 1978); People ex rel. Sklodowski v. State, 642 N.E.2d 1180 (Ill. 1994); Pub. Util. Comm’n v. Cofer, 754 S.W.2d 121 (Tex. 1988).

85                E.g., People ex rel. Salazar v. Davidson, 79 P.3d 1221 (Colo. 2003); EPA v. Pollution Control Bd., 372 N.E.2d 50 (Ill. 1977); Commonwealth ex rel. Hancock v. Paxton, 516 S.W.2d 865 (Ky. Ct. App. 1974); Humphrey ex rel. State v. McLaren, 402 N.W.2d 535 (Minn. 1987); State ex rel. Allain v. Miss. Pub. Serv. Comm’n, 418 So. 2d 779 (Miss. 1982). But see Deukmejian, 624 P.2d at 1206; City of York v. Pa. Pub. Util. Comm’n, 295 A.2d 825 (Pa. 1972).

86                See, e.g., Ohio Code of Prof’l Responsibility EC 5-1 (2004) (“The professional judgment of a lawyer should be exercised, within the bounds of the law, solely for the benefit of his client and free of compromising influences and loyalties.”); see also Model Rules of Prof’l Conduct R. 1.2 (2004).

87                Manchin v. Browning, 296 S.E.2d 909, 923 (W. Va. 1982) (Neely, J., dissenting) (arguing that defining the Attorney General’s role with reference to the attorney-client relationship renders the Attorney General “analogous to a legal aid attorney for State employees sued in their official capacity ... [who is] bound to advocate zealously the personal opinions of the officer whom he represents”).

88                79 P.3d 1221, 1231 (Colo. 2003).

89                For a discussion of the Attorney General’s obligations to refuse to defend unconstitutional laws, see Dawn E. Johnsen, Presidential Non-Enforcement of Constitutionally Objectionable Statutes, Law & Contemp. Probs., Winter/Spring 2000, at 7; and Seth P. Waxman, Defending Congress, 79 N.C. L. Rev. 1073, 1088 (2001).

90                251 N.W.2d 510 (Iowa 1977).

91                Id. at 512.

92                Id. at 516.

93                Affording the Attorney General the power to exercise independent legal judgment (e.g., to provide the Governor with an interpretation of the meaning of a law) is not necessarily inconsistent with the Governor’s duty to assure that the laws are faithfully executed.

94                See Manchin v. Browning, 296 S.E.2d 909, 924 (W. Va. 1982) (Neely, J., dissenting) (“To take the control of the State’s case away from the ‘chief “law-trained” officer of the State’ and inject the opinions of [an executive] officer who has no legal training is nonsensical.”).

95                Cf. Lawrence M. Friedman, American Law in the 20th Century 589 (2002) (observing that all lawyers and judges are at times legal realists).

96                Ohio v. United Transp., Inc., 506 F. Supp. 1278 (S.D. Ohio 1981); see also supra notes 69-71 and accompanying text.

97                State ex rel. Haskell v. Huston, 97 P. 982 (Okla. 1908); see also supra notes 75-76 and accompanying text.

98                See generally Lincoln Caplan, The Tenth Justice: The Solicitor General and the Rule of Law 277 (1987) (describing the Solicitor General’s Office as independently committed to the rule of law).

99                For this reason, the common rule that the Governor may retain separate counsel when the Attorney General refuses to take his position also makes sense. See, e.g., Ex parte Weaver, 570 So. 2d 675 (Ala. 1990) (allowing the Governor to intervene and take a position in opposition to the Attorney General).

100              418 U.S. 683 (1974).

101              278 F.3d 1184 (11th Cir. 2002), opinion withdrawn in part sub nom. Tenn. Valley Auth. v. Whitman, 336 F.3d 1236 (11th Cir.2003).

102              Id. at 1197.

103              As Neal Devins reports, the Supreme Court, in furtherance of its interest in fully hearing an issue, has occasionally chided the Solicitor General for not reporting intrabranch disputes. See Neal Devins, Unitariness and Independence: Solicitor General Control over Independent Agency Litigation, 82 Cal. L. Rev. 255, 315-16 (1994).