When The President Says “No”: A Few Thoughts on Executive Power and the Tradition of Solicitor General Independence

Abstract

Although the Solicitor General is appointed by the President and serves under the Attorney General, he has gradually come to enjoy a tradition of independence in carrying out his official responsibilities. He is only rarely subject to direction by either the President or the Attorney General, and as a practical matter, he is in most cases the final decisionmaker with respect to both designing a strategy for government litigation in the Supreme Court and deciding whether to appeal trial court decisions adverse to the government. On occasion, however, a President will put deference aside and involve himself directly in determining what the government's legal positions are going to be. Documented instances of such presidential involvement are rare, since most occur in the course of rather low-profile discussions within the administration that never become known to the public. Nevertheless, a few examples have received significant attention, either contemporaneously or some years afterwards, often as the result of revealing memoir accounts.