Executing the Laws or Executing an Agenda: Usurpation of Statutory and Constitutional Rights by the Department of Justice

The Department ofJustice (DOJ) can compel individuals and entities to sacrifice their constitutional or statutory rights. The DOJ can do so through brute political force, settlements and consent decrees, selective statutory enforcement, and prosecutions that coerce future actors not to pursue goals contrary to the policy desires of the executive branch. The current regime provides few constraints on the DOJ’s ability to abuse its legal authority to achieve political objectives. This unbridled power jeopardizes the rights of both opposing and third parties.

This Note examines, in a bipartisan manner, the methods the Justice Department employs that deprive opponents or third parties of statutory or constitutional rights. It weighs the need for efficient law enforcement against the government’s duty to protect individual and group liberties. The Note concludes that the current legal checks on DOJ power are insufficient. Congress should continue its present system of legislative policing and pass a modified version of the Tunney Act to limit DOJ abuses beyond the antitrust field.