Checks and Balances Needs More Balance

In our polarized times, we need nuance, context, and careful analysis, not simple denunciation of legal claims, including those made by government officials. One might have expected such dissection to come from the group calling itself Checks and Balances, composed largely of Republican and conservative lawyers disaffected by the Trump administration. Their very name conjures moderation, and a dissenting Republican, conservative perspective on the administration’s excesses promises to be a very valuable corrective, particularly as distinct from more predictable left-liberal revulsion.

If their analysis of William Barr’s speech to the Federalist Society is any indication, however, they are at risk of providing more angry shouts in the blogosphere. Their response to a speech that took forty-five minutes to deliver is two short conclusory paragraphs, in which they accuse Barr of autocratic vision of the presidency with no basis in history. Moreover, their attack on Barr misses nuances in Barr’s own speech and does not try to discriminate between the many different claims he made about the nature of executive power—some of which are well supported by history and some of which are not. Sophisticated critics need to be discriminating. Nor do they put his claims in the context of previous Republican or even Democratic administrations.

Court Settlement of Disputes Between the Executive and Legislative Branches

Begin with the claim that Barr in his speech supported an “unchecked Presidency.” This is an over reading.  Barr in fact says with approval that Congress has “many clubs” with which to beat the executive branch. He principally objects to the judicialization of disputes between the branches, such as the ability of Congress to go to court to get resolution of executive-legislative battles.

This is hardly a novel view. It was the lynchpin of Judge Robert Bork’s famous opinion in the Pocket Veto case in which he argued that giving members of Congress standing to sue to vindicate their own powers would aggrandize the position of the judiciary well beyond that contemplated in the original Constitution. Bork in fact persuasively argues that the idea that interbranch disputes can be resolved in Court by Congress and the Executive as parties is indeed a novelty of modern law and thus consistent with this aspect of Barr’s claim. Moreover, Barr argues that since the Court employs various balancing tests for decisions about the circumstances where executive privilege should yield to congressional standards, courts lack judicially manageable standards to resolve such issues. While he does not invoke by name the political question doctrine—the view that some constitutional issues are not for the Court to resolve—that is the essence of his claim.

I do not agree with Barr that the Court should treat this matter as a political question. The Court has the duty to say what the law is in a case that is properly presented unless the Constitution commits the question to resolution by another branch. But the Roberts Court recently disagreed with my view in finding gerrymandering to be a political question. (I would have said instead that gerrymandering does not violate any constitutional provision). The question of whether congressional standing exists strikes me as a much harder question as a matter of original meaning.

The Unitary Executive

Barr’s claims about the substance of executive power as opposed to the judicial role in resolving them can be divided into two different kinds—the degree of control the President has over his subordinates when carrying out executive power, and the breadth of those powers. The first is whether the President is the “unitary executive” with authority to supervise and remove all subordinate executive branch officials. As an original matter, Barr is on strong ground here for reasons stated ably by my colleague at Northwestern Law School, Steve Calabresi, in many articles and a book. And indeed, the history of the critical period shows that there was concern that plural executives like that which existed in Pennsylvania were far from ideal. And, contrary to the claim of Checks and Balances, it is not true that the greatest assertions of presidential power—at least with respect to control over executive subordinates—have come in the last half century. Myers v. United States is the canonical Supreme Court expression of unitariness and it was decided in 1926.

To be sure, the Supreme Court precedent of today does not support unitariness in a pure form. But, as I have argued elsewhere, both that Court and the lower courts are using it as a regulative ideal to cut back on readings of precedent that have encroached on the President’s control of the executive. Republican administrations have been saying favorable things about unitariness since the administration of Ronald Reagan, and Barr can say them with more support from the courts than in that era. He is hardly an extremist Republican in this matter.

Substantive Executive Power

Barr is on less obviously strong ground in asserting that the President has substantial substantive authority beyond that of executing the laws and is on weak ground when he implies that Congress cannot undermine his actions in those areas. For instance, he says that the President has the authority to “prosecute wars,” a rather vague and open-ended claim. Whatever the President’s authority to eliminate terrorists abroad who threaten the United States, the President still lacks the constitutional authority to begin offensive wars. Moreover, it is Congress, not the President who decides how much money should be apportioned to pursue military objectives even in declared wars. To be sure, the President is the Commander-in-Chief and Congress lacks the authority to dictate battlefield tactics. But the power to prosecute wars is not itself a constitutional concept and must be broken down into its molecular parts as defined in the Constitution.

Sadly, however, Presidents both Democratic and Republican have taken a view of the President’s war making authority not dissimilar to Barr’s. His claim that the President has very substantial, if not plenary, foreign affairs authority is also not novel coming from the executive, but it is also nevertheless overblown. Congress has many authorities, like that over foreign commerce that may constrict any inherent authority over foreign affairs that the President has. His power over foreign affairs is at most provisional, hedged in by Congress’s authority under its enumerated powers.

But the most extravagant and novel claims on behalf of the President’s authority in foreign affairs in recent years were made by the Obama administration. It entered into the Paris Accords and the Iran Deal—actions that on an originalist view should have been done through the Treaty Clause, and that even modern practice would suggest should be handled through congressional-executive agreements. Democratic as well as Republican Presidents tend to expand the powers of the President beyond constitutional bounds. But Democrats follow TR’s adage: Speak softly and carry a big stick. Thus, their claims become less a matter of legal controversy.

There is a matter, concerning the scope of legislative power, that I think Barr should have clarified. He rightly complains of the unprecedented manner in which the Senate is delaying confirmation of the President’s nominees. But this is the Senate’s constitutional right. Indeed, it is one of its clubs to beat the executive over the head. It may be, as I think it is, imprudent, because one can be sure that Republicans will now do the same to next Democratic President—indeed worse if they retain the Senate majority. But political prudence and legality are distinct.

I agree with Checks and Balances that we should criticize even the presidential administration of a party with which we generally sympathize when its legal claims do not comport with our fundamental law. But it remains important to do so with a more meticulous and discriminating analysis. A more balanced critique of the Attorney General’s view of the scope of executive power would be both more persuasive and less polarizing.

Note: The author was Deputy Assistant Attorney General at the Office of Legal Counsel during the time Barr headed the office.

Reader Discussion

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on December 05, 2019 at 11:11:50 am

I am annoyed by the rhetorical diffidence and intellectual nit-picking at work in Professor McGinnis' limp-wristed defense of AG Barr's Federalist Society speech. Barr is a bold defender of the constitution at a time when it is under greater assault than ever before. In these dangerous times for the republic Barr needs real defenders, not mere academic hair-splitters.

I urge readers to decide for themselves about AG's Barr's legal and moral mettle by reading two of his most recent speeches. The first argues that religion is indispensable to the nation's well-being. That address was delivered last month by Barr to the Law School of Notre Dame University (once proudly self-identified as a Catholic college.) The second address, the one that McGinnis does the injustice both of faint and of feint praise, is AG Barr's lecture to the Federalist Society. It discusses the vital role of the Presidency as conceived by the Founding Fathers and written into our Constitution and argues that the major media and the Democrats in Congress, solely for short-term political advantage, are dangerously undermining the Presidency and the Constitution and in so doing are badly harming the country's long-term well-being. McGinnis managed to miss what is the heart of Barr's Federalist Society speech.

I agree with every word of both Barr speeches and think that both culturally and as a matter of constitutional law they are outstanding. Barr is that rare and endangered political species: a public official of deep intellect, learning and sensibility who is also possessed of the courage to defend his profound convictions. Barr may yet prove to be the finest Attorney General in American history; it's too soon to know. But he is surely among the most morally and constitutionally astute national political figures since Washington, Lincoln and (yes) Calvin Coolidge (what a great man!)

Ed Meese was an outstanding AG whose integrity, constitutional conservatism and legal scholarship were under-appreciated while he served, although his decades-long service with the Heritage Foundation has now raised his level of public appreciation so that it approximates his true value to the country. President Trump recognized that recently in awarding Meese the Presidential Medal of Freedom. I think AG Barr will be remembered among conservatives for those same reasons. He is certainly hated by the Left for those reasons. Importantly, Barr has also shown the virtue of great courage by displaying his integrity, constitutional conservatism and legal scholarship under the most trying political/constitutional circumstances since Reconstruction. It is noteworthy and worth comparison to Barr that then another great Republican AG, Amos Akerman in Ulysses Grant's first term, boldly took on the alliance between Democrats and the Klan and strenuously enforced newly enacted federal civil rights laws and the 14th and 15th Amendments. His work was politically-courageous and legally astute.

Contrast that service of just three Republican AG'S with DOJ under two Democrat AG's: FDR used Assistant AG Thurman Arnold who worked with AG Robert Jackson to unjustly hound wealthy Republicans, especially Andrew Mellon (Hoover's and Coolidge's Secretary of Treasury, a rich, generous, brilliant, honest man who gave the nation free of charge the National Gallery of Art filled to the brim with his priceless art collection.) This personal vendetta by Arnold and Jackson working under express instructions from FDR was part of FDR's political class warfare. It was of a piece with FDR's demagogic campaign against the rich, a malign political class war in which, sadly, Mellon became the Democrat's unwitting poster child, their scapegoat-in-chief. The years-long personal vendetta is a major black mark against FDR, Arnold and Jackson.

Then, of course, we have Attorney General Eric Holder who set an historical legal low-water mark for his open contempt of Congress, the constitution and the rule of law. Holder was, so far as I know, the only AG ever to serve the President as "consigliere" in the tradition of in-house Mafia counsel.

In such company Barr is a star and deserves far better than McGinnis gave him here.

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Fustigate Plumply
on December 05, 2019 at 15:01:43 pm

Professor McGinnis says, "While (Barr) does not invoke by name the political question doctrine—the view that some constitutional issues are not for the Court to resolve—that is the essence of his claim.
I do not agree with Barr that the Court should treat this matter as a political question. The Court has the duty to say what the law is in a case that is properly presented unless the Constitution commits the question to resolution by another branch."

Where is that duty to be found? Why is the Court singularly empowered among the three branches to decide whether a controversy is beyond its power to decide? And is not "political question" the very answer to the question of whether "...the Constitution commits the question to resolution by another branch." ?

At the expense of the states and to the detriment of a democratic republic ruled by law, the Court, as a warrior for justice, has unconstitutionally arrogated unto itself vast powers otherwise constitutionally committed to the states. Indeed, in doing that and in eviscerating the constitutional limits of Congress' interstate commerce power, the Court could reasonably be said to have destroyed federalism and created the very centralized government of unlimited power that was feared by both the Federalists and the anti-Federalists. Why should the public now accept as a good idea the dangerous notion of even further judicial usurpation by overriding one of the few restraints on its power that the Court has actually (if only occasionally) acknowledged, the "political question" doctrine?

Further to Barr's point about judicial usurpation, I would note the argument that even on substantive matters of constitutional interpretation it is unwise for the Executive and Congress to cede the field entirely. As Hadley Arkes has argued: "(A)s to the understanding... brought out sharply in Lincoln’s day... the President and Congress have the authority to act upon a moral and legal judgments quite at odds with what the Supreme Court has declared, whether on the right to hold slaves as property or order the killing of babies in wombs." (And I would add marriage, immigration and national security to Arkes' list.)

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Fustigate Plumply
on December 06, 2019 at 13:09:46 pm

After one too many bottles of excellent Walla Walla Valley Merlot, I have found in a euphoric stupor mumbling the words, "The Court has made it's decision. Now let us see it enforce it."

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on December 06, 2019 at 18:30:45 pm

Was that quotation of Orval Faubus talking about Brown v. Board?

Do you get that ting tang stuff from your friend the witch doctor?

Walla Walla Bing Bang!

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Fustigate Plumply
on December 06, 2019 at 21:15:10 pm

I do agree with Prof. McGinnis' analysis of Barr's remarks on the President's ability to "prosecute wars" as part of the so-called 'substantive executive power' concept. Prosecuting and declaring or starting war actions are two very different concepts and the professor is right that AG Barr is on shaky ground supporting the presidential reach in the latter. The Constitution cedes to Congress alone the right to declare war, but we must also look at the "molecular" (as the professor calls them) parts granting to Congress the power to grant letters of Marque and Reprisal, which were the 18th century equivalent of sending in special forces to deal with hostile groups in foreign lands or on the high seas. These actions are not the same as Truman telling the military to drop the bomb on Japan instead of invading, which is an accurate definition of a commander-in-chief directing subordinate military forces to follow a certain strategy.
Prof. McGinnis is also correct to note the rather blatant attempts by modern presidents to end-run Constitutional provisions directing the negotiation and ratification of treaties. This is also a clearly defined process in the Constitution requiring executive-congressional cooperation as the professor notes (Art II, Sec. 2, cl. 2 "by and with the advice and consent of the Senate), and an AG would better serve his president as chief LEO by advising restraint and seeking counsel rather than pushing a position that would force a case into the SCOTUS. It appears that Barr got it right, but McGinnis disagrees, with the comments on the "political question doctrine". On the whole, I think the professor believes that too much deference to any one branch of the Federal government by any person wielding enforcement power is a bad idea. In that, his critique of Checks and Balances' commentary is spot on.

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on December 07, 2019 at 11:15:32 am

Actually, I got it from Dizzy Nancy and the Gang who most recently sought to overturn SCOTUS rejection of "pre-clearance" protocols for the Voting Rights Act in 15 Southern States.

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on December 09, 2019 at 22:01:42 pm

Barr's speech to the Federalist Society (the really important part, the part Professor McGinnis did not discuss and that ''Checks and Balances" understandably avoided criticizing) is shown by today's events to be an act of statesmanship. The devastating (for FBI and DOJ) report of DOJ's IG makes clear that crimes were committed in the FISA applications, in conducting the surveillance (spying) on 4 US citizens and in continuing the investigation of the Trump Administration after January 2017. The elements of criminal conspiracy are lurking on the horizon.

Further, today's statements by Barr and Durham as to the questionable predicate of the FBI/DOJ Trump Collusion investigation suggest that the original initiation of the investigation and surveillance was also unlawful. The FBI lawyer who altered the FISA application to make it say the opposite of the truth as to Carter Page will be the first witness to plea bargain, implicate his multiple co-conspirators and collapses the house of crime.

Congressman Devin Nunes is to the Trump Russia Collusion Hoax conspiracy what Judge Sirica was to the Watergate conspiracy. AG Barr will be seen as the Leon Jaworski of the matter.

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Fustigate Plumply

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