The truth about presidential power

The truth about presidential power
© Getty Images

Ten months ago, the confirmation hearing on William BarrWilliam Pelham BarrBarr criticizes FBI, says it's possible agents acted in 'bad faith' in Trump probe Barr: 'I haven't looked into' whether Ukraine meddled in 2016 election Facebook tells Trump administration it will not create messaging 'backdoor' for law enforcement MORE for attorney general focused on whether he would be independent enough to check the worst excesses of President TrumpDonald John TrumpSanders urges impeachment trial 'quickly' in the Senate US sending 20,000 troops to Europe for largest exercises since Cold War Barr criticizes FBI, says it's possible agents acted in 'bad faith' in Trump probe MORE, who has claimed the Constitution gives him “the right to do whatever I want.” Given his track record, some senators expressed concerns that, if confirmed, Barr would “take extreme and unreasonable positions favoring the executive branch.”

In a recent speech to the conservative Federalist Society, Barr dispelled any lingering doubts. Invoking a purportedly “originalist” understanding of the Constitution, Barr articulated an extreme and capacious view of executive authority, envisioning a president superior to, and largely unchecked by, Congress and the judiciary. But this theory of executive supremacy finds no support in American history or the Constitution itself and would have dangerous consequences for our country.

This argument relies on a revisionist version of our history in which the Framers emerged from the American revolution with a “consensus for a strong independent executive.” That narrative is just unconvincing, given that the colonies declared independence because they determined that King George III had a character “marked by every act which may define a tyrant” and was “unfit to be the ruler of a free people.”

ADVERTISEMENT

Barr dismisses this well known history, however, ratification debates show the Framers were preoccupied with ensuring that presidential power was not so “strong and extensive” that the government would “degenerate” into a monarchy. Although the Constitution granted the president more authority than the Articles of Confederation, James Madison stressed that executive power must be “confined and defined” if the United States is to avoid “the evils of elective monarchies.”

The Framers determined that a system of separation of powers, where legislative, executive, and judicial powers are divided among three coequal branches, would provide the best check against tyranny. Barr views this to mean that whenever Congress acts in an area in which the president has authority, and whenever a court reviews a presidential action, that branch “encroaches” on executive authority. Therefore, Barr argues, the Senate using cloture during its consideration of Trump nominees, which Barr claims causes unnecessary delay, impermissibly erodes presidential power, as did court review of the travel ban.

But his contention that the separation of powers insulates the executive against any influence from, or conflict with, the other branches is simply wrong. The Supreme Court has acknowledged that our system “imposes upon the branches a degree of overlapping responsibility, a duty of interdependence as well as independence.” The Constitution grants Congress the power to legislate, subject to the signature or veto of the president. It assigns Congress the power to declare war, while making the president the commander in chief. It grants the president the authority to nominate judges and officers with “the advice and consent” of the Senate.

In these and other contexts, the Constitution expects the branches will share authority, influence one another, and sometimes clash in carrying out their functions. Barr criticizes this notion of “shared powers” as “mushy thinking,” but the Supreme Court rejected this position 40 years ago as resting upon “an archaic view of the separation of powers as requiring three airtight departments of government.” Indeed, Madison himself explained that separation of powers does not mean the branches “ought to have no partial agency in, or no control over the acts of the other.” Therefore, when conflicts about overlapping powers arise, the Supreme Court balances the constitutional interests of each branch.

Under this approach, the Senate exercising its authority to consider a presidential nominee, even when it results in delay or rejection of a nominee, does not encroach on the prerogatives of the president. This is especially true where the Senate has confirmed more than 150 Trump nominees to the courts, and key executive posts remain unfilled because of White House inaction and not Senate delay. Likewise, a court exercising its constitutional duty “to say what the law is” does not interfere with presidential power, even when it invalidates a presidential action.

ADVERTISEMENT

His theory of executive supremacy, by contrast, envisions a president with virtually limitless constitutional powers. If this view sounds familiar, it is because it has been used to justify a range of abuses of executive power, including the torture of detainees during the Bush administration. It is especially dangerous in our current environment, where Trump has claimed he has an “absolute right” to wield his authority however he wants. The willingness of Barr to justify this lawless assertion with an extreme theory of executive authority should worry all Americans.

At the confirmation hearing, one witness warned that the way Barr views executive power is “so radically mistaken that he is simply the wrong man at the wrong time to be attorney general of the United States.” His speech was more evidence that the Senate should have heeded this warning.

Annie Owens is senior counsel at the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center. She was previously senior counsel to the ranking member of the Senate Judiciary Committee where she advised on the nomination of William Barr for attorney general.