Rarely do cabinet officers leave even a ripple behind on the sea of history, but among those few we remember as shaping our nation’s fate—Treasury Secretaries Alexander Hamilton or Andrew Mellon, for instance, or Secretary of State George C. Marshall—may someday be numbered Attorney General William Barr. It’s much too soon to say, of course, but in two speeches in as many months, he has picked up where the Federalist Papers left off, explaining the theory and mechanism of how our Constitution is supposed to work. Political philosophy doesn’t get much of a hearing these days, so Barr is doing yeoman service in restating the first principles on which government rests.
After reminding a Hudson Institute audience last month of the critical importance to a self-governing republic of moral and religious beliefs that make each citizen capable of individual self-government—the control of his personal passions and appetites—he used last Friday’s speech to the Federalist Society to address executive power and its enemies. One of the main shortcomings of the Articles of Confederation that the Constitutional Convention aimed to fix, as the Federalist Papers stress many times over, was the “lack of energy in the executive,” a lack that made the Revolutionary War longer and bloodier that it otherwise might have been had a strong central government been empowered to raise money and troops without having to beg them from the states. Instead of the Articles of Confederation’s one-branch government, with the Continental Congress serving as both legislature and executive, the Constitution created a national government of three separate, co-equal powers, poised to check and balance each other.
The Federalist Society has famously championed originalism in Supreme Court constitutional interpretations, Barr noted, but a dose of originalism would be salutary in thinking about the other branches of government, particularly the executive. How did the framers conceive of the presidency?
Reflecting upon how England’s Glorious Revolution of 1689 had neutered monarchical power and established parliamentary supremacy, Barr argued, the framers worried less about the danger of presidential power-hunger than congressional megalomania, especially since the Constitution provided that the president be elected for a fixed term of office by the whole nation, to whom he was responsible, and it did not give him taxing and spending power. So, in addition to charging the president with faithfully executing and enforcing the laws passed by Congress—while protecting citizens, by habeas corpus and due process, against misuse of his prosecutorial power—the Constitution also empowered him to deal with foreign relations, war, and such emergencies as natural disasters. It further gave him the power to appoint executive-branch officers and (as recognized by the first Congress under the new Constitution) to remove them, said Barr, along with “the powers necessary to protect the independence of the Executive branch and the confidentiality of its internal deliberations.”
Energized by its impeachment of President Richard Nixon and his consequent resignation over Watergate, Congress has steadily encroached on presidential power, Barr observed. But after Donald Trump’s election, that encroachment made a quantum leap. Trump’s “opponents launched what they called ‘The Resistance,’” which uses “every tool and maneuver available to sabotage the functioning of his Administration,” as if his presidency were “not legitimate,” and his opponents were an “insurgency against rule imposed by an occupying military power.” A prime example is the abuse of the Senate’s advice-and-consent power, now wielded not to reject unqualified candidates but to hinder the formation of a functioning government. Senate Democrats have so drawn out the confirmation process for almost all nominees that the Republican majority has invoked cloture, cutting off delaying debate, 236 times since Trump’s inauguration, as opposed to 17 times during Barack Obama’s first term, and four times in the first term of George W. Bush.
In addition, the Resistance has abused Congress’s legitimate oversight power with endless demands for testimony and documents from the executive branch, with “scores of parallel ‘investigations’ through an avalanche of subpoenas,” that amount to “constant harassment.” Both the Congress and the Supreme Court well know the importance of confidentiality in their own internal workings, and they carefully “shield their own internal communication from public inspection. There is no FOIA [Freedom of Information Act] for Congress or the Courts.” The Framers themselves knew the importance of confidentiality for free discussion and wise decision-making; that’s why they imposed strict secrecy on the meetings of the Constitutional Convention and forbade publication of its deliberations. But (perhaps because President Nixon’s critics turned the term “executive privilege” into a pejorative) today’s Congress is quick to label efforts to maintain executive-branch confidentiality as “obstruction of Congress” and to hold cabinet secretaries in contempt, as if the executive branch were not co-equal. Meanwhile, Congress has deputed its own work to administrative agencies that, as FDR admitted as he proliferated them, have no constitutional legitimacy—and in the case of the Consumer Financial Protection Bureau, said Barr, amounts to “a junior varsity President for economic regulation.”
The judiciary has piled on to this assault on executive power in two ways. First, the Supreme Court has “appointed itself the ultimate arbiter of separation of powers disputes between Congress and Executive, thus preempting the political process, which the Framers conceived as the primary check on interbranch rivalry,” Barr observed. The Framers had no vision of one co-equal branch being more co-equal than the others. Barr’s example here is Morrison v. Olson, the Court’s 1988 decision legitimating the independent counsel law. Who gave the Court authority to let Congress usurp the executive’s prosecutorial power and lodge it—where, exactly?
Second, and more insidious, is the interference of the courts in presidential decision-making in areas the Constitution clearly leaves to executive discretion, including national security and foreign affairs. Most egregious, perhaps, is the Supreme Court’s 2008 Boumedienne decision, usurping the president’s core authority as commander-in-chief by investing foreign combatants with all the due-process rights, including habeas corpus and judicial review, with which the Constitution clothes American citizens. “The Constitution does not confer ‘rights’ on foreign enemies,” Barr objected. But now, for “the first time in American history,” our armed forces can’t take prisoners. “We are now in the crazy position” that we can kill terrorists on the battlefield, but we can’t capture them. That’s “how far the doctrine of Separation of Powers has been eroded.”
Now the lower courts are swarming after the Supremes in usurping this key executive power. Barr’s principal case in point is a Hawaii district court’s blocking of a Trump administration ban on travel to the United States of aliens from half a dozen countries that were “unquestionable hubs of terrorism activity,” an injunction upheld by the Ninth Circuit. These courts blocked this “clearly justifiable . . . public safety measure for a year and half on the theory that the President’s motive for the order was religious bias against Muslims.”
No less galling than this decision’s substitution of the judiciary’s judgment for the president’s in matters of executive authority is its presumptuousness in passing judgment on what it deems the executive’s “real motive,” with judges playing “amateur psychiatrists.” Unlike Queen Elizabeth I—who, with post-Reformation religious passions running high and threats to her life constant, famously declared, “I would not open windows into men’s souls”—these judges think they can pluck out the heart of any man’s mystery. Though Barr didn’t mention it, just look at the Supreme Court’s June ruling in the census case, Department of Commerce v. New York, in which the majority, with a mind-reader’s clairvoyance, claimed that Commerce Secretary Wilbur Ross’s stated reason for including a particular question on the 2020 census was “pretextual” and therefore illegitimate. That would mean, as Justice Samuel Alito thundered in dissent, that any district judge, “upon receiving information that a controversial agency decision might have been motivated by some unstated consideration, may order the questioning of Cabinet officers and other high-ranking Executive Branch officials, and the judge may then pass judgment on whether the decision was pretextual.” Well, we’re there.
Those district judges drew Barr’s last complaint. They are district judges. By what authority do they inflate their role by issuing nationwide injunctions, which “have no foundation in the courts’ Article III jurisdiction” and yet have allowed—or at least emboldened—“any one of more than 600 individuals to singlehandedly freeze a policy nationwide, a power that no single appellate judge or Justice can accomplish”? Through over 40 such injunctions against the government, as compared to two during Barack Obama’s first two years as president, “virtually every major policy of the Trump Administration has been subjected to immediate freezing by the lower courts.”
These injunctions short-circuit efforts by the people’s elected officials to solve national problems together—in other words, they preempt democracy. The brouhaha surrounding Trump’s attempted rollback of Obama’s decree allowing adult aliens who’d been brought into this country illegally as children to remain and work—Deferred Action on Childhood Arrivals, or DACA—is the most recent example. After an appellate court found an almost identical Obama decree unlawful, a ruling which the Supreme Court upheld, Trump decided to rescind DACA, while opening negotiations with Congress to craft a better overall immigration policy. But just as the political leaders had assembled and the cameras began to roll, another district judge emitted an injunction barring Trump from ending by decree what Obama had begun by decree. The meeting broke up, and a “humanitarian crisis at the southern border ensued.” The Supreme Court won’t address the latest injunction until the summer, “meaning that President Trump will have spent almost his entire first term enforcing President Obama’s signature immigration policy,” enacted by mere fiat and almost certainly illegal. “That is not how our democratic system is supposed to work,” concluded Barr.
He’s right, of course; and the instant calls by the outraged Resistance for his impeachment and disbarment because of this speech only underscore the accuracy of his critique that the Left “is engaged in the systematic shredding of norms and the undermining of the rule of law.” Perhaps the Resistance believes such antidemocratic behavior is only fair payback for Senate Majority Leader Mitch McConnell’s refusal to consider Obama’s nomination of Merrick Garland to the Supreme Court, even though only once in six times did the Senate allow a president of the opposing party to fill a Court vacancy during a presidential election year—and that was because, in an emergency, Democrat Grover Cleveland nominated a strongly pro-business, laissez-faire judge.
Now the Resistance has reached its logical, if absurd, conclusion in the impeachment ritual aimed at nullifying the 2016 presidential election. With our laws, traditions, and Constitution so scorned, Republicans should take Barr’s hint and ask the voters in the 2020 elections if they want their republic back.
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