Attorney General William P. Barr was not wrong to warn the Federalist Society last Friday that the self-styled \”resistance\” has been \”waging a scorched earth, no-holds-barred war\” from the Trump administration. This is compatible with the chance that President Trump abused his office. The truth that police officers harass drivers with speed traps doesn't legalize speeding.
What Barr overlooked was why this White House, like the majority of recent ones, has been so intensely targeted: The presidency is just about the locus of power in American politics. The \”constant harassment\” of the White House against which Barr inveighed may be the result of the aggrandized presidency he championed within the same speech.
As in Top court nominations, and unlike in academics, controversies relating to the presidency are so intense since the stakes are so high. The possibility of transferring large amounts of power at the same time will always inflame the public.
Barr elevated those stakes in the speech, repeatedly equating the presidency with \”the government.\” That usage is common in parliamentary systems, where the executive functions are performed by members of the legislative branch. Underneath the U.S. Constitution, however, the president heads one branch of presidency, and not the most powerful one at that. Despite Barr's insistence that the presidency is \”coequal\” with the legislature, the evidence he cites to support that conclusion undermines it.
The Framers were generally suspicious of power wherever it was found. Towards the extent that they worried that the legislative branch was, in Barr's words, \”the biggest branch to liberty,\” it was because they understood that it was where the most power in the constitutional system resided. About this point, the Federalist Society members who gave Barr a standing ovation Friday should consult their very own organization's website, which accurately declares that Congress was intended as \”our government's most powerful branch and it is most accountable.\”
The idea that the \”resistance\”-which Barr defensibly censured for having chosen the language of \”insurgency\” rather than of constitutional opposition-is trying to cripple \”a duly elected government\” reflects a simplified view of the American system where the president is elected by all the people and therefore best represents the public will.
This was antithetical to the Framers of the Constitution, who repeatedly referred to members of the House of Representatives-in whose hands they placed the strength of impeachment-as the \”immediate representatives\” of the people. James Wilson, the Pennsylvania Framer and future Top court justice, argued at the Constitutional Convention the federal government's power would be considerable and that it therefore should be built on \”as broad the groundwork as possible,\” by which he meant \”the most numerous branch of the Legislature.\” The idea that impeachment overturns the popular will ignores the truth that the Framers believed the public will could be most fully expressed in elections to the House.
The president has no more, and arguably substantially less, of the claim to represent public opinion than Congress. There are few political issues that can be distilled to an undifferentiated, for-or-against public will. That is why the presidency is inherently polarizing: Just one person, and thus one point of view, can hold the office at a time. By contrast, Congress embodies multiple and nuanced perspectives since it is comprised of 535 people. Placing the presidency at the center of the system-as though Congress exists simply to react to it-tends to harden these views right into a one-dimensional partisanship of opposition or support.
In this sense, Barr's warning that early Americans thought of the executive as an \”errand boy of a Supreme legislative branch,\” an idea he said the Constitution rejected, is revealing for 2 reasons. First, the Constitution arguably does understand the president as what the name of the branch suggests: the person accountable for \”executing\” the will of Congress. Wilson, for example, also argued in the Convention against viewing executive power broadly: \”The only powers [Wilson] conceived strictly Executive were those of executing the laws, and appointing officers.\”
Second, Barr's \”errand boy\” allusion ended up being to Chief Justice Fred Vinson's dissent in Youngstown Sheet and Tube Co. v. Sawyer, the situation in which the Supreme Court ruled that President Truman's seizure of steel mills under cover of the alleged and nebulous war power was unconstitutional. Vinson dismissed the holding, a landmark of yankee law, as reflecting a \”messenger-boy concept\” of the presidency.
Does Barr agree that presidents can invoke war powers to workout authority they are not constitutionally granted? Prior to the Federalist Society, he flirted with the idea: When \”the government is defending the country against armed attacks from foreign enemies,\” the Constitution is worried \”with one thing . . . destroying the external threat,\” and never with \”other values.\” Within this, Barr takes exception to James Madison, who warned at the convention that \”the means of defence [against] foreign danger, have been always the instruments of tyranny at home.\”
Barr's conception of the presidency will always be the instrument of intense controversy at home as well. One cannot vote suddenly to change the whole Congress: The best a voter can do is register a view on a single representative. By contrast, any time at which the locus of power expires for grabs at once-as is the case with the modern presidency-will inevitably agitate the public and its representatives. A president's opponents will invariably seek his or her downfall. Sometimes he or she will deserve it. Either way, the cycle will continue. In the event that concerns Barr, he should revisit his own swollen vision of executive power.