By David B. Rivkin and Andrew M. Grossman
December 24, 2019, in the Wall Street Journal
Washington’s knives are out for Attorney General William Barr, and the stabbing has intensified since he delivered a November address at the Federalist Society. Predecessor Eric Holder —who while serving in the Obama administration described himself as “the president’s wingman”—accused Mr. Barr of championing “essentially unbridled executive power.” In the same Washington Post op-ed, Mr. Holder added that Mr. Barr’s “nakedly partisan” remarks rendered him a pawn of President Trump and “unfit to lead the Justice Department”—an utterly unhinged claim.
In the New York Times, William Webster, who directed both the Federal Bureau of Investigation and the Central Intelligence Agency, chastised Mr. Barr for criticizing FBI bias. Meanwhile, the Never Trump group Checks and Balances accused Mr. Barr of advancing an “autocratic vision of executive power” that is “unchecked” by Congress and the courts.
Some of the attacks are mere symptoms of Trump derangement syndrome, but others reflect by a deep-seated resistance to the Constitution’s separation of powers and the threat that its enforcement poses to the unaccountable administrative state. In either case, they’re wrong. Far from calling for executive supremacy, Mr. Barr has vigorously advocated the Framers’ vision of the Constitution’s separation-of-powers architecture, featuring the three governmental branches—Congress, the president and the judiciary—each exercising its distinctive authorities while checking the others. In his Federalist Society address, Mr. Barr, quoting Justice Antonin Scalia, explained that the Constitution gives the president and Congress “many ‘clubs with which to beat’ each other.”
Mr. Barr’s extolling of the “unitary executive” is hardly revolutionary—nor, as critics imagine, is it a call for dictatorship. It posits only that the president, being responsible for execution of the law, must be able to control his subordinates. This was the rule across the government until Humphrey’s Executor v. U.S. (1935), in which the Supreme Court carved out an exception for members of certain “independent” regulatory agencies, whom the president can fire only for “good cause.”
The Framers had good reason to favor a strong presidency. The early republic’s weak civilian executive leadership almost lost the Revolutionary War, shifting nearly the entire burden to Gen. George Washington. Postwar government under the Articles of Confederation was a ruinous shambles, unable to assert any sort of national leadership. To be sure, the Framers also feared legislative overreaching. They resolved all these problems by creating a coequal executive who could act, in Mr. Barr’s words, with “energy, consistency and decisiveness.”
Humphrey’s Executor was only the beginning of the attack on the constitutional design. Congress whittled away at executive power, depriving the president of the authority and duty to “take care that the laws be faithfully executed.” The courts not only approved those usurpations, but themselves meddled in disputes between the political branches and seized broad swaths of executive discretion.
Numerous lawmakers, most of the media and much of the political class now claim—at least during a Republican administration—that even core executive-branch activities, such as diplomacy and law enforcement, must be substantially free from presidential control. Hence the steady drumbeat of criticism directed at Mr. Trump for overseeing and making policy for the Justice Department, the FBI and the intelligence community as a whole.
The result isn’t a strong Congress but the supplantation of the Constitution’s checks and balances with a worst-of-all-worlds muddle. Leaders of independent agencies like the Consumer Financial Protection Bureau exercise executive power free from accountability to the president or voters and subject only to the partisan whims of Congress. The bureaucratic “resistance,” spurred on by its allies in Congress, openly defies presidential decisions, undermining the principle of democratic control even in core areas of presidential responsibility like foreign policy. For their part, the courts increasingly police ordinary separation-of-powers disputes between Congress and the executive, destroying the possibility of compromise through political means.
These deviations from the Framers’ blueprint explain much of the government’s current dysfunction. Congress avoids politically dangerous decisions by palming tough choices off on agencies and the courts. The legal and political limbo of the so-called Dreamers is a ready example. Ceaseless congressional investigations nearly incapacitate the White House and are designed to achieve precisely that result. Executive agencies find their every action—even those involving inherently discretionary matters—subject to judicial scrutiny and nationwide injunctions imposed by judges whose jurisdiction is supposed to be limited to a state or district. Whereas the separation of powers fostered practical compromise, today’s judicial supremacy reduces everything to winner-take-all litigation.
Mr. Barr warned in his address that we must “take special care not to allow the passions of the moment to cause us to permanently disfigure the genius of our Constitutional structure.” Too often, previous attorneys general regarded the elements of separation of powers opportunistically, as cudgels to be employed in particular disputes. Mr. Barr’s vision and goals are broader. He’s concerned not only with the conflicts of the day but the structure necessary for the federal government to work. It’s a bold vision, but it’s the opposite of a partisan one.
If Mr. Barr achieves even a fraction of his agenda to restore the Framers’ vision of a strong, independent executive, he will go down as Mr. Trump’s most consequential executive appointment.
Messrs. Rivkin and Grossman practice appellate and constitutional law in Washington. Mr. Rivkin served at the Justice Department and the White House Counsel’s Office. Mr. Grossman is an adjunct scholar of the Cato Institute.