Wanted: An at­tor­ney gen­eral com­mit­ted to the Con­sti­tu­tion

Eric Holder’s res­ig­na­tion is a chance to re­store the rule of law

The Washington Times Weekly - - Commentary - By Marco Ru­bio

It is no se­cret that the Obama ad­min­is­tra­tion has demon­strated ques­tion­able com­mit­ment to the rule of law. It has un­der­mined the sep­a­ra­tion of pow­ers by dis­re­gard­ing con­gres­sional en­act­ments while push­ing ex­ec­u­tive power far beyond its con­sti­tu­tional bound­aries. It has fur­ther un­der­mined limited gov­ern­ment by dis­re­gard­ing fed­er­al­ism and push­ing Wash­ing­ton-knows-best leg­is­la­tion that far ex­ceeds any­thing the Found­ing Fa­thers could have con­ceived.

In re­cent years, a politi­cized Jus­tice Depart­ment has re­fused to de­fend bi­par­ti­san leg­is­la­tion in court and re­sisted con­gres­sional over­sight. Its prac­tice of en­ter­ing into ex­tremely gen­er­ous “set­tle­ments” with en­vi­ron­men­tal and other lib­eral groups raises ques­tions about whether the ad­min­is­tra­tion is wel­com­ing law­suits as a tool to by­pass Congress and en­ter new reg­u­la­tions by ju­di­cial de­cree.

Last week’s an­nounce­ment that At­tor­ney Gen­eral Eric Holder Jr. will leave the ad­min­is­tra­tion pro­vides the pres­i­dent the op­por­tu­nity to undo some of this dam­age by nom­i­nat­ing an at­tor­ney gen­eral who is com­mit­ted to putting the rule of law first.

Amer­ica de­serves a nom­i­nee to lead the Jus­tice Depart­ment who is fully com­mit­ted to vig­or­ous ap­pli­ca­tion of our na­tion’s Con­sti­tu­tion and laws with­out po­lit­i­cal bias or per­sonal agenda. I ex­pect the pres­i­dent will nom­i­nate a mem­ber of his po­lit­i­cal party to the po­si­tion of at­tor­ney gen­eral. That is his pre­rog­a­tive. But Congress also must in­sist that the pres­i­dent nom­i­nate a pro­fes­sional lawyer who rec­og­nizes the spe­cial mis­sion of the Jus­tice Depart­ment and who can win the broad con­fi­dence of the Amer­i­can peo­ple.

The cur­rent lead­er­ship of the Jus­tice Depart­ment has in­di­cated that it is not fully com­fort­able with one of its core mis­sions — en­force­ment of fed­eral crim­i­nal law. While in­di­vid­u­als from a va­ri­ety of per­spec­tives have made a com­pelling case that Amer­i­can law has been over-crim­i­nal­ized and over-fed­er­al­ized, re­form must come from Congress, not the ad­min­is­tra­tion. Also, re­form should not be­gin with care­less weak­en­ing of drug laws that have done so much to help end the vi­o­lence and may­hem that plagued Amer­i­can ci­ties in prior decades.

To­day, there are thou­sands of fed­eral crimes; so many that ex­perts have stopped count­ing. Congress has added fur­ther to this be­wil­der­ing maze of crim­i­nal law by giv­ing reg­u­la­tors broad pow­ers to spew forth count­less new reg­u­la­tory crimes. As a re­sult, cit­i­zens and busi­nesses have been ex­posed to so­ci­ety’s harsh­est judg­ment and pun­ish­ment with­out any mean­ing­ful in­put from elected of­fi­cials. Fur­ther­more, many con­gres­sion­ally en­acted laws are poorly drafted and lack a clear stan­dard of in­tent, mak­ing it pos­si­ble for well-mean­ing peo­ple to stum­ble into crim­i­nal li­a­bil­ity.

A new at­tor­ney gen­eral can help re­store the rule of law and the con­fi­dence of the Amer­i­can peo­ple by work­ing with Congress to cat­a­log ex­ist­ing fed­eral crim­i­nal law with a spe­cial eye for laws that are vague, du­plica­tive, un­der­used or bet­ter en­forced by state and lo­cal au­thor­i­ties. He or she could also part­ner with Congress to help re­store in­tent re­quire­ments to crim­i­nal law, so that a com­pli­cated crim­i­nal sys­tem does not be­come a trap for the un­wary. He or she can also in­sist, as we all should, that laws cre­at­ing crim­i­nal li­a­bil­ity are de­bated in Congress, passed and signed by the pres­i­dent, rather than is­sued by un­ac­count­able bu­reau­crats as reg­u­la­tions.

The new at­tor­ney gen­eral should also take a hard look at the fed­eral as­set-for­fei­ture fund. Civil-for­fei­ture au­thor­ity, as op­posed to crim­i­nal for­fei­ture, al­lows gov­ern­ment to seize prop­erty with­out con­vict­ing its owner of any­thing. It is a pow­er­ful tool that in­vites abuse, es­pe­cially be­cause the seiz­ing agen­cies can keep the pro­ceeds for them­selves. This cre­ates a per­verse in­cen­tive. It also, in essence, cre­ates a “slush fund” that an agency can use to fund its ac­tiv­i­ties free of con­gres­sional ap­pro­pri­a­tion. While broad pro­pos­als to re­form th­ese laws have been made and will be de­bated, an im­me­di­ate first step should be to pre­vent the Jus­tice Depart­ment or other law en­force­ment agen­cies from keep­ing th­ese pro­ceeds for them­selves. If there is a valid law en­force­ment pur­pose to for­fei­ture, the judg­ment of gov­ern­ment agen­cies should not be warped by self-in­ter­est.

The pres­i­dent’s nom­i­nee for at­tor­ney gen­eral must also com­mit that he or she will not abuse set­tle­ment agree­ments in civil law­suits to im­pose bur­den­some new reg­u­la­tions on Americans with­out the con­sent of Congress. Trans­parency with Congress and re­spon­sive­ness to on­go­ing over­sight will help en­sure th­ese law­suits are not mis­used. Con­gres­sional leg­is­la­tion should man­date fur­ther trans­parency and op­por­tu­ni­ties for the pub­lic to in­ter­vene.

Th­ese types of re­forms are mod­est steps to­ward restor­ing Amer­i­can con­fi­dence in the Jus­tice Depart­ment and the rule of law. They do not do what some pro­pose and oth­ers fear — sig­nal re­treat in the drug war or loosen duly-en­acted en­vi­ron­men­tal pro­tec­tions.

In­stead, they pro­mote clar­ity, trans­parency and ac­count­abil­ity. When Congress is re­spon­si­ble for the statutes it passes and the ad­min­is­tra­tion is ac­count­able for their en­force­ment, gov­ern­ment is most re­spon­sive to the peo­ple. When fed­eral law is clear, cit­i­zens can be ex­pected to follow and re­spect it, while the mis­sion of law en­force­ment is clar­i­fied and less likely to be abused.

The rule of law is the foun­da­tion of Amer­i­can free­dom and pros­per­ity. It is vi­tal that the next at­tor­ney gen­eral com­mit to pro­tect­ing and pre­serv­ing it. Marco Ru­bio is a Repub­li­can mem­ber of the U.S. Se­nate from Florida.

IL­LUS­TRA­TION BY LI­NAS GARSYS/THE WASH­ING­TON TIMES

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