Attorney General William P. Barr was not wrong to warn the Federalist Society last Friday that a self-styled “resistance” has been “waging a scorched earth, no-holds-barred war” against the Trump administration. This is compatible with the possibility that President Trump abused his office. The fact that police officers harass drivers with speed traps does not legalize speeding.
What Barr overlooked was why this White House, like most recent ones, has been so intensely targeted: The presidency has become the locus of power in American politics. The “constant harassment” of the White House against which Barr inveighed is the result of the aggrandized presidency he championed in the same speech.
As in Supreme Court nominations, and unlike in academics, controversies involving the presidency are so intense because the stakes are so high. The possibility of transferring large amounts of power at once will always inflame the public.
Barr elevated those stakes in his 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. Under the U.S. Constitution, however, the president heads one branch of government, 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. To the extent that they worried that the legislative branch was, in Barr’s words, “the most dangerous branch to liberty,” it was because they understood that it was where the most power in the constitutional system resided. On this point, the Federalist Society members who gave Barr a standing ovation Friday should consult their own organization’s website, which accurately declares that Congress was intended to be “our government’s most powerful branch and its 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 in which 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 power of impeachment—as the “immediate representatives” of the people. James Wilson, the Pennsylvania Framer and future Supreme Court justice, argued at the Constitutional Convention that the federal government’s power would be considerable and that it therefore should be built on “as broad a basis as possible,” by which he meant “the most numerous branch of the Legislature.” The idea that impeachment overturns the popular will ignores the fact that the Framers believed the public will would be most fully expressed in elections to the House.
The president has no more, and arguably substantially less, of a 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: Only one person, and thus one point of view, can hold the office at a time. By contrast, Congress embodies multiple and nuanced perspectives because it is comprised of 535 people. Placing the presidency at the center of the system—as though Congress exists only to react to it—tends to harden these views 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,” a concept he said the Constitution rejected, is revealing for two reasons. First, the Constitution arguably does understand the president as what the name of the branch suggests: the person responsible 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 was to Chief Justice Fred Vinson’s dissent in Youngstown Sheet and Tube Co. v. Sawyer, the case in which the Supreme Court ruled that President Truman’s seizure of steel mills under cover of an alleged and nebulous war power was unconstitutional. Vinson dismissed the holding, a landmark of American law, as reflecting a “messenger-boy concept” of the presidency.
Does Barr agree that presidents can invoke war powers to exercise authority they are not constitutionally granted? Before the Federalist Society, he flirted with the idea: When “the government is defending the country against armed attacks from foreign enemies,” the Constitution is concerned “with one thing . . . destroying the external threat,” and not with “other values.” In 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 moment at which the locus of power is up 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 always seek his or her downfall. Sometimes he or she will deserve it. In either case, the cycle will continue. If that concerns Barr, he should revisit his own swollen vision of executive power.
