Break Up the Presidency?: Governors, Independent Attorneys General, and the Lessons from the Divided Executive

An overwhelming number of states have a divided executive. In forty-eight states, for example, the attorney general is not subject to removal by the governor; and in many states, secretaries of states, treasurers, and auditors, and a host of other state officials, are also independent of gubernatorial control. The state experience with a divided executive branch presents both advantages and disadvantages. The fact that executive power is dispersed serves as a check against any particular officer overreaching but power dispersal may also raise substantial governance problems when executive branch officials disagree. A governor who does not exercise direct authority over her attorney general or secretary of state, for example, may be seriously hampered in pursing her political agenda. A divided executive can also be especially troublesome when the state is involved in litigation. A recent Georgia case, for example, saw the attorney general and the governor on different sides in litigation regarding redistricting. Who, in such circumstances, should be deemed the party that represents the state? How are the relative responsibilities of the governor and the attorney general to be determined? This article addresses the policy and legal issues raised by the divided executive. It focuses specifically on the issues raised by the division of executive power between Governors and Attorneys General. It does so for three reasons. First, the division between Governors and Attorneys General provides a particularly illustrative example of the advantages of the divided executive. Second, there is an intriguing body of law addressing the division of power between Governors and Attorneys General that has been relatively ignored in the literature. Third, examining the dispersal of power between a Governor and an Attorney General provides useful insight as to whether there should be an analogous dispersal of power at the federal level. We live in an era of increasing (and some would say increasingly unchecked) presidential power. It may therefore be useful to imagine whether an appropriate and workable check on that power may be constructed from within the executive itself and not just from the other two branches of the federal government. Part I provides a brief discussion of the history and evolution of office of the state Attorney General to its contemporary status, in which forty-three state Attorneys General are elected and forty-eight are free from gubernatorial control. As part of this discussion, this section will provide a brief background into the development of the federal office of the Attorney General. Part II explores the relationships between the Governors and the Attorneys General under a system of divided government. It describes the structure of the divided executive, explains how the system works in practice, identifies the sources of potential conflict that the system creates between the offices of the Governors and Attorneys General, and canvasses the cases that address the relative powers of the Governors (or other members of the state executive branch) and the Attorneys General. As will be shown, these cases, with some exception, hold that it is the Attorney General, and not the Governor, who is the final authority regarding the state's legal position and it is the Attorney General, and not the Governor, who is the party entitled to formally represent the state in court. The section then concludes with an assessment of why, and in what circumstances, the majority rule best reflects the purposes and design of the divided executive. Finally, Part IV poses the question of whether the federal government should adopt a divided executive model. Because of a wide range of factors, the presidential has dramatically expanded in the last half century. The result of this expansion is that Congress and the courts may no longer be able to check executive power in a timely fashion particularly with respect to matters that demand an immediate response. The only possible check on presidential power, in these circumstances, then, rests within the executive branch itself. The problem with this, of course, is that because the executive branch officials such as the Attorney General are not independent of the President, their capability to provide any effective check on presidential excesses may be illusory. The question then becomes whether the federal executive should be restructured to provide for more effective internal checks against potential abuse. One option in this regard is to learn from the state experience and amend the Constitution to make the Attorney General an independently elected office, as the majority of states provide. This section examines this possibility.