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.