A Confirmation Hearing Turns Into a Constitutional Debate
Todd Blanche wants to be Attorney General. Instead of talking about crime policy or DOJ reorganization, he's fielding questions about a single decision: shielding President Trump from I.R.S. audits while serving as acting Attorney General. That decision has become the flashpoint of his Senate confirmation, and it raises a question that goes well beyond politics — how much unilateral power does the Attorney General actually have, and who gets to check it?
What Happened
As acting Attorney General, Blanche reportedly granted President Trump protection from I.R.S. audit scrutiny — a move critics say blurs the line between running the Justice Department and personally shielding the president from routine tax enforcement. Republican senators who might otherwise support Blanche are hesitating, wary of confirming someone whose first high-profile act suggested the office could be used to insulate the president rather than enforce the law evenly.
The Legal Angle
The core issue is the scope of the Attorney General's discretionary authority and whether courts, Congress, or anyone else can review how that discretion is used. Federal law gives the head of an executive department — including the Attorney General — broad authority to "prescribe regulations for the government of his department" and the "performance of its business," a power rooted in 5 U.S.C. § 301 [1]. That statute has long been read as giving the AG wide latitude to set internal policy, so long as it doesn't conflict with governing statutes [1].
But broad discretion is not the same as unreviewable discretion, and that's where things get complicated. Courts have repeatedly wrestled with whether decisions by the Attorney General — particularly ones touching politically sensitive matters — are subject to judicial review at all, or whether they're left almost entirely to executive judgment, with Congress as the only real check [5][6][7].
What the Precedents Say
The most direct guidance comes from the line of cases interpreting the now-expired independent counsel statute. Courts found that Congress deliberately withheld judicial review of many Attorney General determinations, reasoning that "an Attorney General's determinations under the independent counsel law are not subject to judicial review" [7]. The logic: where Congress wanted courts to police the AG, it said so explicitly; where it didn't, the assumption is that oversight belongs to Congress, not judges [6]. That same body of law makes clear that Congress retains its own tools — including the threat of impeachment — to respond when it believes the Attorney General has acted improperly, even if courts stay out of it [2].
Morrison v. Olson [2] remains the foundational separation-of-powers case here. It upheld limits on presidential removal power over an independent counsel, but the dissent's warning — that congressional oversight, not judicial review, was expected to be the real backstop against an Attorney General who refuses "to obey the law" — is exactly the dynamic playing out in Blanche's hearings [2][5]. Separately, Georgia v. United States [1] illustrates that even broad, discretionary DOJ authority is generally upheld by courts as long as it's exercised through reasoned, published rules rather than ad hoc, unexplained action — a standard Blanche's critics argue his audit decision didn't meet.
What It Means for You
For ordinary taxpayers, this fight is a reminder that decisions about who gets audited — and who doesn't — sit closer to raw executive discretion than most people assume, with limited built-in judicial checks [1][6][7]. For anyone watching the confirmation process, the real question senators are asking isn't just "was this legal?" but "should one person's discretion be enough?" Under existing law, the honest answer is that Congress, not the courts, is likely the primary check on how an Attorney General uses that discretion [2][5] — which is precisely why Blanche's fate now rests with the Senate rather than a judge.