The Lawyer in the Executive Branch of Government

Extract

The federal government has expanded so much in recent years, both in the number of its personnel, and in the number of functions it performs, that to refer to the executive branch as if it were a homogeneous group of departments and agencies is highly misleading. On the other hand, those structures have some features in common. Many of the larger executive departments, for instance, exercise a certain quasi-judicial power—as in Boards of Contract Appeals. Many of the larger departments promulgate rules which can and do have the force of law, and may be regarded as performing a quasi-legislative function. A substantial number of government lawyers spend much of their time in litigation before these boards, the regulatory agencies, or the courts. However, for the most part, the day-to-day routine of the government lawyer is not typically of an adversary nature. Every legal decision necessarily raises the possibility that it may ultimately be attacked in some form or other; however, the decisions with which this paper will deal are not attacked so much in proceedings which are adversary as in those which are investigative. And the culmination, in general, tends to strengthen the executive, rather than the reverse, for time is on its side; the modern world is too complicated to be run by a legislature.