Presidents come and go but so, as defenders of DACA ought also to know, do judges.
Ever since his confirmation as Attorney General, William Barr has refused to pull his punches when discussing what could be one of the greatest political scandals in US history. Beginning with his observation in congressional testimony that “spying” occurred in the FBI’s now-disgraced investigation of the Trump campaign (“the only question,” he said, “is whether it was predicated”) to his appointment of a US attorney to look into the possibility that crimes were committed by the FBI and others, he has not left any doubt about the gravity of his concerns. This has made him a key target for the left, in Congress and the media. It seems clear that the strategy now will be to paint Barr as a political ally and hatchet man for President Trump. This will be important if further investigation of the FBI and the CIA results—as it likely will—in indictments. Everything Barr says, then, from now until the end of the Trump presidency, will be exaggerated and distorted to support the charge that the indictments to come were politically motivated.
Nothing so encapsulates this strategy as a December Washington Post article by Eric Holder, a former AG under President Obama—a piece that was as rich in hypocrisy as it was in misinformation. “Although I am reluctant to criticize my successors,” Holder intoned, Barr “has made a series of public statements and taken actions that are so plainly ideological, so nakedly partisan and so deeply inappropriate for America’s chief law enforcement official that they demand a response from someone who held the same office.” Not surprisingly, Holder’s conclusion was that Barr is too supportive of President Trump and thus “unfit to lead the Justice Department.” This, as many have noticed, came from an Attorney General who prided himself on being Barack Obama’s “wing man.”
Hypocrisy aside, Holder’s article focused on Barr’s November speech to the Federalist Society, and revealed either that he, like many other critics, hadn’t read the speech or didn’t understand it. To be sure, that speech has engendered a lot of adverse commentary on the left—most of it specious. Many of the critical articles, like Holder’s, enlarged on the authoritarian theme: the idea that Barr was attempting to justify the allegedly (and imaginary) authoritarian ideas of the Trump administration, or at least to somehow enlarge the powers of the presidency. The New York Times did its part by weighing in with an article that accused Barr of having “a maximalist view of executive power.” These are serious and perhaps deliberate misreadings of the speech, most of which was a completely unremarkable and valid argument for the return of the limited constitutional powers of the president that Congress and the courts have restricted over time.
Certainly, the President has some special powers, set out in Article II of the Constitution, but far fewer than those vested in Congress by Article I. He is the commander in chief of the armed forces, and (with the advice and consent of the Senate) he is authorized to make treaties, and appoint judges, ambassadors, and other officers of the executive branch. That’s the extent of his constitutional authorities. Importantly, however, he was given a duty to “take care that the laws be faithfully executed,” and this single phrase is the source of all the president’s power over domestic and foreign policy.
What Barr was describing in his Federalist speech was the so-called “unitary executive,” a view of the president’s authority under the Constitution that conservatives and others have held at least since the Reagan administration. It maintains that the president—if he is to fulfill his constitutional duty—must have the authority to dismiss all the senior policy-making officials of his administration. “If Congress attempts to vest the power to execute the law in someone beyond the control of the President,” Barr said in his Federalist speech, “it contravenes the Framers’ clear intent to vest that power in a single person, the President.” (This does not mean of course that only the president can execute a law, as Holder suggested, oddly, in his Washington Post article, but only that Congress cannot constitutionally vest this power in someone “beyond the control” if the president.)
It’s a bit surprising that a former attorney general, if he had actually read the speech, would not recognize this argument for what it is, since it would have affected equally the authorities of Obama and Trump. The inability of the president to appoint and remove important members of his administration reduces his power to determine the policies of the government, and for that reason the ability of the people to change these policies through the election of a new president.
Holder is certainly not a stranger to the issue of the president’s authority. While he was AG, President Obama claimed that the president could declare when the Senate was in recess, enabling him to make recess appointments that do not have to be confirmed by the Senate. Obama’s claim—one of the most aggressive ever made by any president—was struck down 9-0 by the Supreme Court. It was the Senate’s prerogative, said the Court, to determine when it is in recess. It is somewhat shocking, therefore, that Holder would call out Barr for simply arguing that, in the presidency, the Framers created a “strong Executive, independent of, and coequal with, the other two branches of government.”
The “Take Care” Clause and the Unitary Executive
In his Federalist Society speech, Barr argued that the duty laid on the president by the “take care” clause has been diminished over time.
Most legislation does not empower the president personally; it authorizes an officer, like the secretary of the Treasury, to take particular actions. The only way the president can be sure that the secretary will follow the president’s policies in taking these actions is his ability to remove and replace the secretary and, if necessary, every other senior official in the executive branch.
Yet, in many cases Congress has created offices within the executive branch that are controlled by officials the president cannot remove from office. The so-called “independent agencies”—the SEC, FTC, FCC and others headed by bi-partisan multi-member commissions—are examples of these offices. In 1935, in Humphrey’s Executor v US, the Supreme Court held that Congress could create “quasi-legislative” and “quasi-judicial” bodies like these, outside the control of the president, and the members could be given terms of office from which they could not be removed by the president other than for malfeasance.
This makes it nearly impossible for a president to “take care that the laws be faithfully executed” in the areas of the economy governed by these independent commissions, and the Court’s use of such vague terms as quasi-legislative and quasi-judicial open other avenues for making it difficult or impossible for the president to carry out the role that he was constitutionally empowered and elected to perform.
But recently the issue has become much more pointed. During the Obama administration Congress created two powerful offices in the executive branch—the Federal Housing Finance Agency, which regulates Fannie Mae, Freddie Mac and the Federal Home Loan Banks (and thus much of the $11 trillion housing finance market) and the Consumer Financial Protection Bureau, which regulates and enforces almost all the federal laws covering consumer finance. The heads of both agencies are single administrators appointed for five year terms who cannot be removed by the president except for malfeasance in office. It is difficult to believe that this issue was not raised within the Justice Department while Holder was the AG; whether it was raised is unknown, but the Obama administration did not move to protect the power of the presidency in this respect.
The principle here should be of concern to every citizen as well as every president. After an intervening election, if a new president cannot replace the heads of these two agencies, he will not be able to carry out his campaign promises in two important areas of the US economy. An officer appointed by a previous president, and following out the previous president’s policies, may not be dislodged for as long as five years. Moreover, and even more important, Congress could decide—contrary to the Constitution’s structure and the Framers’ intent—that other officers who have major roles in any administration will be appointed for extended terms without the ability of an incumbent president to dismiss them.
The realization that Congress could do this with any executive branch agency—even those that are currently headed by officials the president can remove from office—has renewed concern among conservatives and constitutionalists about continuing impairments in the president’s authority to control the agencies of the executive branch. If that occurs, the president’s constitutional “take care” duty can be substantially reduced or eliminated, together with his ability to fulfill the mandates implicit in his election.
That is what the AG was referring to when he talked about the unitary executive in his Federalist Society speech. He believes, correctly, that all agencies of the executive branch should be subject to the president’s control through his power to remove and replace their principal officials. Thus, the AG was not arguing to give the president more power; he was arguing that Congress or the courts should restore the president’s authority to carry out his constitutional duty.
Other Challenges to the President’s Authority
Barr complained in his Federalist speech that the courts, too, have taken powers away from the president—often by enjoining actions that the president was authorized by law to take—on what can only be considered politically motivated pretexts. These cases are most troubling because they create the impression that the judges are allies of political parties, rather than independent jurists interpreting the laws. In these cases, judges have gone so far as to bring the motives of the president into the consideration when Congress has clearly authorized—and the president is clearly required—to take certain actions that he believes are necessary to protect the American people. Inferring the president’s motives is for the voters, not the courts, to determine.
A good example, cited by Barr, is the travel-ban case. President Trump had the authority under the law to close US borders to persons who might harm Americans, and he decided to ban entrants from several countries—most of them Muslim—that he and his advisers decided did not have functional central governments or the law enforcement apparatus that would enable our immigration personnel to determine whether a particular entrant posed a security threat. A single district judge in Hawaii issued a nationwide injunction on enforcement of the president’s order on the ground that it was based on religious bias against Muslims, and this injunction remained in effect for more than a year.
Barr noted in his Federalist speech that the “Supreme Court has traditionally refused, across a wide variety of contexts, to inquire into the subjective motivation behind governmental action.” Once it is clear that the executive has the authority to take an action, the courts should not look behind it to determine whether the motive for action was pure. This has been done often during the Trump administration, creating precedents that can be used in the future against any president, and thus disrupting or impairing what that president has been elected and empowered to do.
The courts use of “state of mind” assumptions about elected officials will result in pervasive political acrimony. When the Hawaii decision reached the Supreme Court in 2018, it was reversed, but only 5-4, with a dissent by Justice Sotomayor that Adam Liptak and Michael Shear described as follows in the New York Times: “In a passionate and searing dissent from the bench, Justice Sonia Sotomayor said the decision was no better than Korematsu v. United States, a 1944 decision that endorsed the detention of Japanese-Americans during World War II.” Then the Times continued: “The vindication for Mr. Trump was also a stunning political validation of the Republican strategy of obstruction throughout 2016 that prevented President Barack Obama from seating Judge Merrick B. Garland on the nation’s highest court after the death of Justice Antonin Scalia.”
When a Supreme Court justice cannot see the difference between the awful Korematsu decision and the restriction President Trump imposed on entry from only eight countries—only six of them Muslim—the courts have become so politically polarized that even decisions of the Supreme Court will not be treated with respect. Similarly, when one of the leading newspapers in the United States shows as little respect for a fully-reasoned Supreme Court decision as it might a decision of a congressional committee, the authority of presidents of both parties to carry out their law-enforcement duties are likely to be challenged and delayed in the future solely on political grounds. As Attorney General, Barr was correct to raise this important issue.
The AG and “The Resistance”
One part of the AG’s speech had nothing to do with the president’s power but was certainly one of the reasons for the attacks on Barr that appeared in the Washington Post, New York Times, and National Public Radio (where Richard Painter, an “ethics lawyer” for George W. Bush, called it a “lunatic authoritarian speech”) and elsewhere. The “Resistance,” the AG suggested, was a serious break with the norms of our democracy. The party out of power, he noted, is usually called the “loyal opposition” to signal its right to oppose the government’s actions within the rules of a widely accepted constitutional structure.
However, the “Resistance” that has developed during the Trump presidency is something new, said Barr, pointing out that the term itself “connotes that the government is not legitimate.” There has been bitter opposition to presidents in the past, but perhaps nothing like this since the Civil War era. Since it began almost immediately after the election of 2016, there was nothing the president actually did while in office to warrant this dangerous uprising.
The frightening part is that this movement succeeded in enlisting virtually all the Democratic members of the Senate. “A prime example,” Barr noted, “is the Senate’s unprecedented abuse of the advice and consent process.” By September of this year, the Democrats in the Senate had forced cloture votes on 236 Trump nominees. During the Obama administration, the number was only 17 over eight years. He didn’t mention that if the Republicans had not had a majority in the Senate, or if Harry Reid, the former Senate Democratic leader, had not eliminated filibusters for nominations, President Trump might not have been able to form a government at all.
This is serious business, and could put our form of government in real jeopardy. Never, except perhaps in the period leading up to the Civil War, has an insurrectional group captured a major party’s representatives in the Senate and House of Representatives. It is not too much to suggest that, if this continues, the comity that once characterized the American experiment may be coming to an end. There is an expression in Washington that “whatever goes around comes around,” so it will take extraordinary leadership among the Republicans in the Senate to allow the next Democratic president to form a government without the harassment that President Trump has faced.
In calling attention to the uniqueness of the Resistance, and the actions of the Senate under its influence, Attorney General Barr highlighted a serious long-term obstacle to the successful functioning of our government. That part of his Federalist Society speech—actually the most serious—did not receive much media coverage (although Holder said Barr had “exposed himself as a partisan actor, not an impartial law enforcement official”) but unless cooler heads prevail in the next few years, we may see the government “of the people, by the people and for the people” perish from the Earth.