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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.

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