11.19.2019 0

Attorney General Barr is right, the left is deconstructing the Constitution and the Presidency

By Robert Romano

Apparently now saying that Article II of the Federal Constitution’s vesting of executive power to the President was an unambiguous, broad grant of unitary executive authority to the President of the United States by the Framers of the Constitution, and arguing for preserving such separation of powers from encroachment, is an impeachable offense.

That’s what former White House ethics counsel Richard Painter thinks about a speech Attorney General William Barr delivered on Nov. 15 to the Federalist Society. Painter wrote on Twitter in reaction, “Another lunatic authoritarian speech as Barr goes from attacking ‘radical secularists’ at @NDLaw to one month later attacking the ‘resistance’ at @FedSoc. Impeach Barr now!”

U.S. Rep. Bill Pascrell, Jr. (D-N.J.) called for Barr’s law licenses to be stripped in a tweet on Nov. 16, writing, “Yesterday AG Barr addressed a radical political group and gave one of the most vicious partisan screeds ever uttered by a US cabinet officer. Barr says trump should have king-like powers. Barr is a liar and a fanatic and should be impeached and stripped of his law licenses.”

Former Assistant U.S. Attorney Mimi Rocah similarly blasted Barr’s speech, tweeting a story from Law & Crime entitled, “Lawyers Call for AG Barr’s Impeachment After Federalist Society Speech.” Earlier, Rocah had blasted Barr’s speech, writing, “This is so outrageously inappropriate for an AG to be saying. You are the head of the DOJ for all Americans not just the ones in the Federalist Society. Please start acting like it.”

Barr’s thought crime? Adopting the Alexander Hamilton position on the strong, unitary executive under Article II, enumerated in the Federalist Papers including in the Federalist No. 70 in 1788.

Therein, Hamilton argued, “Energy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws; to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy.”

Which is exactly what Barr said in his speech, declaring, “The consensus for a strong, independent Executive arose from the Framers’ experience in the Revolution and under the Articles of Confederation.  They had seen that the War had almost been lost and was a bumbling enterprise because of the lack of strong Executive leadership.  Under the Articles of Confederation, they had been mortified at the inability of the United States to protect itself against foreign impositions or to be taken seriously on the international stage.  They had also seen that, after the Revolution, too many States had adopted constitutions with weak Executives overly subordinate to the Legislatures.  Where this had been the case, state governments had proven incompetent and indeed tyrannical.”

Barr is right. The revolution we are witnessing today by the so-called resistance is the deconstruction of the Constitution and the Article II presidency writ large by courts implementing nationwide injunctions on clearly constitutional presidential acts like the travel ban or building the wall using reprogrammed monies, and Congressional attempts to usurp executive power away to unaccountable administrative state agencies.

The struggle we are seeing today is over whether we will have a Constitution at all. Above all other officers, it is the President who explicitly in the Constitution must swear an oath to uphold the Constitution, and who ultimately safeguards limited government and the rule of law, which cannot prevail without the separation of powers.


 

Barr continued, “From these practical experiences [under the Articles of Confederation], the Framers had come to appreciate that, to be successful, Republican government required the capacity to act with energy, consistency and decisiveness.  They had come to agree that those attributes could best be provided by making the Executive power independent of the divided counsels of the Legislative branch and vesting the Executive power in the hands of a solitary individual, regularly elected for a limited term by the Nation as a whole.”

And, the executive power was meant to be separate and distinct from the judicial and legislative powers. Per Barr, “Just as the great separation-of-powers theorists — Polybius, Montesquieu, Locke — had, the Framers thought of Executive power as a distinct specie of power.”

This includes “carrying into effect the laws passed by the Legislature — that is, applying the general rules to a particular situation”; “the power to handle essential sovereign functions — such as the conduct of foreign relations and the prosecution of war — which by their very nature cannot be directed by a pre-existing legal regime but rather demand speed, secrecy, unity of purpose, and prudent judgment to meet contingent circumstances”; “to address exigent circumstances that demand quick action to protect the well-being of the Nation but on which the law is either silent or inadequate — such as dealing with a plague or natural disaster”; and “the Executive’s powers of internal management… [that are] necessary for the President to superintend and control the Executive function, including the powers necessary to protect the independence of the Executive branch and the confidentiality of its internal deliberations.”

This is most certainly the Hamiltonian view of executive power, and the one that was adopted by the very first administration of President George Washington and has been used as the basis by subsequent administrations. This is not a controversial view of executive power, as seen in 2008’s 558-page tome, “The Unitary Executive:  Presidential Power from Washington to Bush” by Steven G. Calabresi, Christopher S. Yoo.

In it, the authors argue there has been a unanimous consensus among every president on the question of unitary executive power: “This book shows that all of our nation’s presidents have believed in the theory of the unitary executive,” including the powers to direct and if deemed necessary, to remove other executive branch officials.

Calabresi and Yoo continue, “Big fights about whether the Constitution grants the president the removal power have erupted frequently, but each time the president in power has claimed that the Constitution grants the president power to remove and direct subordinates in the executive branch. And each time the president has prevailed, and Congress has backed down. The Constitution gives presidents the power to control their subordinates by vesting all of the executive power in one, and only one, person: the president of the United States. All subordinate nonlegislative and nonjudicial officials exercise executive power, and they do so only by implicit or explicit delegation from the president. They are thus all subject to the president’s powers of direction and control. The truth of this observation has been acknowledged not only by our greatest presidents, but also their least distinguished brethren. We show here that all forty-three presidents have consistently adhered to a practice of construing the Constitution as creating a unitary executive and giving them the removal power…”

Calabresi and Yoo add, “[T]he consistency of the historical record is rendered all the more striking when viewed in light of the way presidential power has ebbed and flowed over the course of our nation’s history. Obviously the country has had strong presidents, such as Andrew Jackson, Abraham Lincoln, and the two Roosevelts, and we have had weak presidents like Franklin Pierce, James Buchanan, and Warren Harding. Strikingly, these well-known fluctuations in the relative power of Congress and the president have had almost no impact on the consistency with which presidents have asserted their sole power to control the execution of the laws. Indeed, history reveals that all presidents — strong and weak — have defended the unitary executive ever since 1789.”

And it all goes back to the Washington administration, in which Hamilton was a key figure. There’s a reason why in comparative politics classes the U.S. system is often called a presidential system. Hamilton, the nation’s first Treasury Secretary and Washington’s most trusted advisor, is that reason. He helped organize the federal bureaucracy, not as an unaccountable administrative state, but one that was answerable to the President.

In the Federalist No. 70, Hamilton argued against executive by committee, and made the case for why we only have one president at a time for very good reason, writing, “Wherever two or more persons are engaged in any common enterprise or pursuit, there is always danger of difference of opinion. If it be a public trust or office, in which they are clothed with equal dignity and authority, there is peculiar danger of personal emulation and even animosity. From either, and especially from all these causes, the most bitter dissensions are apt to spring.”

Leading to what? Hamilton warned, “Whenever these happen, they lessen the respectability, weaken the authority, and distract the plans and operation of those whom they divide. If they should unfortunately assail the supreme executive magistracy of a country, consisting of a plurality of persons, they might impede or frustrate the most important measures of the government, in the most critical emergencies of the state. And what is still worse, they might split the community into the most violent and irreconcilable factions, adhering differently to the different individuals who composed the magistracy.”

This view found its way into the Washington administration unambiguously, with the first exercises of implicit executive powers, including suspending a treaty with France when it went to war with Great Britain with the 1793 Proclamation of Neutrality.

And Hamilton was right. In the age of Trump, we have court cases over the President’s clearly constitutional exercise of laws Congress has enacted and that do give the President clear grants of power, as in the travel ban case.

Trump was given a special counsel over the firing of an FBI director, James Comey, who lied to President Donald Trump about the extent of the investigation into his campaign and administration, on false allegations that he and his campaign had been agents of Russia. It is an irony that the conspiracy theory itself was debunked by none other than Special Counsel Robert Mueller.

And now we have an impeachment whose central premise is Trump’s temporary decision to withhold military aid to Ukraine while he considered the future prospects of the U.S. relationship with that country and whether or not to request a rescission of that funding from Congress.

We have seen how the administrative state reacts when a president has his own ideas about foreign policy and the removal of subordinate officers. This is the deep state showing its teeth. You fight the wars they want — or else.  But they are the true tyrants, these unaccountable, unelected and unremovable bureaucrats, who answer to no one if they do not answer to the President.

Robert Romano is the Vice President of Public Policy at Americans for Limited Government.

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