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Engaging in Zealous Advocacy for and Defense of the Constitution and Lawful Administration Regulations and Policies. The Department of Justice has the exclusive responsibility for the “conduct of litigation in which the United States, an agency, or officer thereof” is involved and has been charged with the supervision of “all litigation to which the United States, an agency, or officer thereof is a party.”*' However, in politically contentious cases, Assistant United States Attorneys and other line prosecutors during conservative Administrations seek to influence outcomes of cases not because of any legal deficiency in the case or policy being defended, but by refusing to take certain positions, by writing public letters of protest, and by engaging in faux resignations from certain internal appointments. This can cause the department to take positions that are inconsistent with the interests of the President and his appointees in other places throughout the Administration.

While the supervision of litigation is a DOJ responsibility, the department falls under the direct supervision and control of the President of the United States as a component of the executive branch. Thus, and putting aside criminal prosecutions that can warrant different treatment, litigation decisions must be made consistent with the President’s agenda. This can force line attorneys to take uncomfortable positions in civil cases because those positions are more closely aligned with the President’s policy agenda.

Ultimately, the department will have to make tough calls as it manages its litigation, but those calls must always be consistent with the President’s policy agenda and the rule of law. A line attorney should never either directly or indirectly pursue a policy agenda through litigation that is inconsistent with the agenda of his or her client agency or the President. The department should also be cognizant of any attempts to slow litigation and outlast the Administration to avoid finality. The next conservative Administration should therefore:

• Issue guidance to ensure that litigation decisions are consistent with the President’s agenda and the rule of law.

• Ensure that, consistent with this principle, the department’s leadership is prepared to impose appropriate disciplinary action as circumstances arise.

Affirming the Separation of Powers. Federal courts have jurisdiction to deal with a wide array of issues in law and equity in the United States. The increasingly aggressive posture of federal courts does not change one constitutionally immutable fact: All three branches of the federal government retain not just the right, but the obligation to assess constitutionality. It is this obligation that is the foundation of the separation of powers.