The Federalism Project

Constitutional Reform and Governance in the U.S. (& Around the World)

Executive Reforms

The US Federal Government (the Executive Branch composed of 15 departments, and a number of other independent agencies), due to its size and growth over the daces, is well overdue for an overhaul and a restructuring.  Last time a President was granted broad reorganization authority was Ronald Reagan.  Since then, even more departments and agencies were created.  There are many departments that need to be restructure and reorganized, moving various agencies around, and even creating some new, like a Department for the Environment.

The primary objective here is to better facilitate the ‘intergovernmental process’ (the need for a smooth cooperation and coordination among the vast bureaucracy composed of departments performing overlapping functions), as well as safeguard the professionalism and efficiency of the federal government.  This could be achieved in part by reforming the function of the White House Advisory Councils, and by better institutionalizing the independence of the Department of Justice.

1)  White House Advisory Councils

Consolidate the function of the various White House Advisory Councils into four, and treat them like internal think tanks.  By virtue of their composition, they could be both the ideal connector between Presidential priorities flowing down from the top, as well as inter-agency policy priorities bubbling up to the President.

  • National Security Council – made up of a fixed number of subject-matter experts, and the heads of select government departments and agencies (like Defense, State, Intelligence, Homeland, etc.)
  • Economic Policy Council – made up of a fixed number of subject-matter experts, and the heads of select government departments and agencies (like Treasury, Commerce, Labor, Energy, Agriculture, etc.)
  • Domestic Policy Council – made up of a fixed number of subject-matter experts, and the heads of select government departments and agencies (like HHS, Education, Housing/Urban Development, etc.)
  • Administrative Council – responsible for providing advice and coordination of all maters having to do with the Federal Government (like Administration, Budget, Management, Personnel, etc.)

The objective here to create the equivalent of a ‘congressional committee’, where select functions of the government come together to better coordinate and implement major policy priorities.  Once again, facilitating efficiency and removing the politicking of the White House.

2)  Justice Department Independence

One of the greatest shortcomings of our system of governance exposed by the Trump Presidency has been the role/independence of the Justice Department.  It makes common sense that the Justice Department represents the US Government, and not the individual who is serving as the President.  It should go without saying that the Justice Department, in its investigation and prosecution of crimes, serves the interests of the American people and not just those of the President.

The independence of the Justice Department was one of those ‘unwritten rules’ of our system of governance (like Presidential candidates having to release their tax returns), that we all thought was a given.  Unfortunately, as the current president is demonstrating, the wrong person can significantly undermine the independence of the Justice Department.

Therefore, it is essential that we reorganize/restructure the Justice Department to guarantee its independence.  One solution would be to separate the major function of Justice Department, with an emphasis on institutionalizing and equalizing the power of the Four G’s (attorney, solicitor, inspector, enforcement).  Instead of having one Attorney General in charge of every function under the Justice Department, consider splitting it into four equal functions:

  • Attorney General – In charge of all the District Attorney’s, current offices, and divisions, like Antitrust Division, Civil Division, Civil Rights Division, Criminal Division, Environment and Natural Resources Division, Justice Management Division, National Security Division, Tax Division. Therefore, the Attorney General will still be responsible for prosecuting those who break the law.
  • Solicitor General – Will represent the US federal government at the US Supreme Court, as well as all US Appellate Courts. This will separate the legal function of prosecuting, from the political choice to appeal a court ruling, or how to interpret the Constitution and thus argue Supreme Court cases.
  • ‘Enforcement’ General – Will be in charge of all the current DOJ agencies responsible with law enforcement and investigation, like United States Marshals Service (USMS), Federal Bureau of Investigation (FBI), Federal Bureau of Prisons (BOP), National Institute of Corrections (NIC), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), Drug Enforcement Administration (DEA). This will ensure the independence of the FBI from politics, to pursue any lead and investigation it deems appropriate and necessary.
  • Inspector General – There are currently 73 federal offices of inspectors general (attached to many federal executive departments, independent federal agencies, as well as state and local governments), tasked with identifying, auditing, and investigating fraud, waste, abuse, embezzlement and mismanagement of any kind within the government. All these IG’s will report to one IG at the Justice Department, who will also be empowered to investigate fraud, waste, abuse, embezzlement, mismanagement, and ANY other kind of illegal activity on the President and the White House.  The President, like all the other Federal Government employees, should be under constant investigation by the IG of the DOJ.  This will render the need/role of a special council, superfluous.

Under this structure, the Attorney General will be ‘first among equals’, in charge of all other aspects of the Justice Department, but not of the other three ‘generals’ who will have to be appointed separately by the President, and confirmed by the Senate with an enhanced vote requirement (3/5ths – 60/100).  Such an enhanced voting requirement for Senate confirmation will lead to the appointment of consensus (non-political, non-partisan) candidates, who could maintain their independence from the Attorney General.

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