The news that the Bush administration has replaced seven United States Attorneys, each appointed with the support of their state's senators and none charged with or guilty of wrongdoing, with seven persons fairly describable as Washington apparatchiks should give pause to all those concerned with America's working Constitution. This recent action was made possible by a little-noticed provision of the so-called 'Patriot Act' allowing the President to make interim appointments of United States attorneys, a function previously confided to the federal district courts. It supplies further evidence, if evidence was needed, of Congress' carelessness with federal jurisdiction and the administration of federal criminal law.

The office of United States Attorney is a powerful office, far more powerful than it was at the time of the ratification of the Constitution. Its functions are no longer confined to federal specialties such as customs and revenue offenses, but extend to virtually the entire range of criminal offenses. Congress has mounted a 'war on drugs' extending to even minor possession offenses. It has re-enacted a sweeping mail fraud statute stripped of jurisdictional limitations imposed on it by the Supreme Court. To the accompaniment of demagogic rhetoric emanating from both the Clinton and George W. Bush administrations, it has created several dozen new federal death penalty offenses. Stringent federal sentencing guidelines, more severe than their state counterparts, have rendered federal prosecutions the prosecutions of first resort, even for categories of street crimes. During the tenures of Attorneys General Reno, Ashcroft and Gonzales, the number of federal prosecutors has exponentially increased.

Hitherto, the choice of these officials has been subject to local and political checks. As contemplated by Alexander Hamilton in the Federalist No.75, the requirement of Senate confirmation has operated to prevent the staffing of these positions by pliant presidential cronies: the local Senators, particularly those of the president's party, in practice have nominated United States attorneys and normally have been concerned not to outrage the local bar by parachuting in persons with no knowledge of the culture, mores and customs of a state. While the appointees have always served at the President's pleasure, and are usually of his party, politically motivated removals have been guarded against by vesting the power of interim appointment in the local federal judges, usually drawn from both parties, who have generally appointed senior career officials pending a presidential nomination and Senate approval of it.

The enthusiasts for unlimited executive power and a compliant Congress have now changed this. Defenders of the change declare a purpose to uphold the separation of powers by excluding the judiciary from appointments and rendering appointees fully subject to the will of the President; they also laud the academic qualifications and experience of the seven new 'inside the beltway' appointees. But their theory of government is not that of the Constitutional framers. Art II, Sec.2 of the Constitution expressly allows judicial appointing powers. The Humphrey's Executor and like cases allow Congress to limit presidential removal powers on Justice Brandeis' premise that the function of the Constitution was "not to promote efficiency but to preclude the exercise of arbitrary power." The current apostles of a 'unitary executive' are less vocal in its support during Democratic administrations and do not seek to impair the independence of the Federal Reserve Board; we may hope that the swing of the political pendulum will clear their minds even further.

In the wake of Watergate, Congress, at the urging of Attorney General Edward Levi, roused itself from its torpor by providing the F.B.I. director with a ten-year fixed term to insulate him from Presidential whims. The explosion of federal criminal jurisdiction renders imperative thorough Congressional review of the provisions for appointment and removal of all important federal law enforcement officials, not merely U.S. Attorneys. We take for granted the dispersion of police and prosecutorial power, the bedrock of American civil liberty. In all but two or three states, prosecutors are elected for short terms; the most powerful state prosecutor, the District Attorney of Los Angeles County, exercises control over only about 3% of the nation's population.

In almost all states, primary law enforcement is a local, not state, function; the most powerful policeman, the Police Commissioner of New York City, similarly exerts sway over less than 3% of the nation. Governors possess and exert very limited control over law enforcement. The insulation of law enforcement from political abuse is not easily accomplished. We do not want prosecutors to be laws unto themselves, like some abusive 'special prosecutors'; neither do we want an elective dictatorship. Geographic dispersion, of which Congress has lately grown careless, has historically been the American answer to this problem. The growth of 'Main Justice ' renders it imperative that old controls be reinstated and new ones devised.

National police and prosecutorial bureaucracies are notoriously difficult to control and uproot, as both Russian and French history adequately attest .The residents of the seven judicial districts affected by the new appointments do not yet have reason to remonstrate against an Executive who has, in the language of the Declaration of Independence, "sent hither swarms of officers to harass our people and eat out their substance", but the new appointments, and the statute authorizing them, impair local self-government and overly aggrandize the federal executive.

George Liebmann, a Baltimore lawyer, is volunteer executive director of the Calvert Institute for Policy Research, a center-conservative 'think tank' and the author of The Common Law Tradition: A Collective Portrait of Five Legal Scholars (Transaction Books, 2005)