As I alluded to in my previous post, I wanted to delve a little deeper into the issue of interbranch relations. My jumping off point are remarks Attorney General William Barr delivered to the Federalist Society.
My interest in this speech was piqued by a tweet from Josh Blackman, who live-tweeted the speech. He wrote:
Topic: The Constitution’s approach to executive power. More than any other branch, the executive branch has met the expectations of the framers. We’ve seen a steady encroachment on executive branch by other branches.
My reaction to this tweet was that Attorney General Barr must be delivering this address from Earth 2, because here on Earth 1 this is the opposite of reality. The executive has grown beyond all recognition from the original intent of the Framers, while the legislative branch has shrunk in significance. It has been demoted to a co-equal branch, when most astute students of history would see the legislative branch is the clearly superior of the three.
As I dug a little deeper into the speech, though, I was struck by how much I agreed with it. Barr’s point was a little more subtle than perhaps captured by the tweet, though in the end I generally disagree with the tenor of his remarks. Barr seems to be an unabashed fan of the executive, and I believe this colors his perception and causes him to exaggerate or distort a chunk of American history. Yet there are aspects of these remarks which have a ring of truth. So let’s take a deeper look.
Towards the beginning of his remarks, Barr offers up this assessment which is representative of a lot of the speech in that it is superficially true in most respects but not exactly accurate in its totality.
The grammar school civics class version of our Revolution is that it was a rebellion against monarchial tyranny, and that, in framing our Constitution, one of the main preoccupations of the Founders was to keep the Executive weak. This is misguided. By the time of the Glorious Revolution of 1689, monarchical power was effectively neutered and had begun its steady decline. Parliamentary power was well on its way to supremacy and was effectively in the driver’s seat. By the time of the American Revolution, the patriots well understood that their prime antagonist was an overweening Parliament. Indeed, British thinkers came to conceive of Parliament, rather than the people, as the seat of Sovereignty.
Barr is correct in noting that the simplistic version of American history and the cause of the revolution overstates the role that opposition to monarchy played in our decision to declare independence. Indeed, the colonists main beef was with Parliamentary acts they deemed Parliament had no legal right to apply to the American colonies. They appealed to the crown, and were finally driven to revolution when the king would not listen to their appeals.
Yet this paragraph implies that the root of American angst was Parliament qua Parliament. This is not so. The colonists were angered by specific actions taken by Parliament. They had no objection to the system of government in Great Britain, and in fact were quite happy to live under what most considered to be the best form of government on earth. No American patriot was bothered by Parliamentary supremacy, at least as applied to the motherland itself. Thus Barr over-corrects the traditional historical narrative.
Next Barr discusses American history, noting that many Americans at the time of the revolution believed the chief executive to be inferior to the legislature (very true – thus my point above), but had corrected course by the time of the constitutional convention.
Things changed by the Constitutional Convention of 1787. To my mind, the real “miracle” in Philadelphia that summer was the creation of a strong Executive, independent of, and coequal with, the other two branches of government.
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.
Once again Barr provides a partially correct narrative. Madison, Hamilton, and other Federalists were indeed horrified by many of the issues which plagued the national government through the revolution and in the years of the Articles of Confederation government. Madison in particular was concerned by the excesses of democracy and the ways in which the states – due to the need for unanimity under the AoC – had thwarted any progress.
But again Barr exaggerates the import of all this. The Federalists (at least most of them) did not necessarily see a strong executive as the proper response to the problems which plagued the contemporary federal government. The weakness of the national government was itself the main culprit, thus they wanted to establish a constitution aimed at strengthening the federal government. Indeed, many of the delegates continued to push for a an even weaker executive than which emerged out of Philadelphia. Alexander Hamilton was uniquely alone in arguing for something like a monarch, and even that may have been nothing more than an effort to halt the momentum of the small states and their plans for the new government. Little coming out of the debates or the Federalist papers or other writings suggests that a strong executive itself was seen as the answer to these problems. To the extent that they pushed for a stronger executive than what subsisted under the AoC it was only as part of a greater design to grant the federal government more legitimacy.
Barr proceeds to correctly lay out some of the Framers’ thinking on the powers of the executive, particularly as it relates to the sense of immediacy under which this branch functions. Then he turns to a controversial topic: the unitary executive.
One of the more amusing aspects of modern progressive polemic is their breathless attacks on the “unitary executive theory.” They portray this as some new-fangled “theory” to justify Executive power of sweeping scope. In reality, the idea of the unitary executive does not go so much to the breadth of Presidential power. Rather, the idea is that, whatever the Executive powers may be, they must be exercised under the President’s supervision. This is not “new,” and it is not a “theory.” It is a description of what the Framers unquestionably did in Article II of the Constitution.
After you decide to establish an Executive function independent of the Legislature, naturally the next question is, who will perform that function? The Framers had two potential models. They could insinuate “checks and balances” into the Executive branch itself by conferring Executive power on multiple individuals (a council) thus dividing the power. Alternatively, they could vest Executive power in a solitary individual. The Framers quite explicitly chose the latter model because they believed that vesting Executive authority in one person would imbue the Presidency with precisely the attributes necessary for energetic government. Even Jefferson – usually seen as less of a hawk than Hamilton on Executive power – was insistent that Executive power be placed in “single hands,” and he cited the America’s unitary Executive as a signal feature that distinguished America’s success from France’s failed republican experiment.
On this matter Barr is on solid ground. At it simplest level the unitary executive means nothing more than that the buck stops with the president. The language of Article II vests only a single person with the executive power. Therefore Barr is correct in countering the more breathless attacks on this concept.
Unfortunately Barr proceeds to attack strawmen in order to justify his initial premise that the executive is under attack.
When these disputes arise, I think there are two aspects of contemporary thought that tend to operate to the disadvantage of the Executive.
The first is the notion that politics in a free republic is all about the Legislative and Judicial branches protecting liberty by imposing restrictions on the Executive. The premise is that the greatest danger of government becoming oppressive arises from the prospect of Executive excess. So, there is a knee-jerk tendency to see the Legislative and Judicial branches as the good guys protecting society from a rapacious would-be autocrat.
I’m not sure if this an accurate depiction of the argument against a strong executive. Now, he’s speaking broadly and there may be individuals who hold the views he’s describing, though I suspect that those numbers are few. I’m especially dubious that many of the people who desire a greater role for the legislature necessarily hold the judiciary in such high regard. At least on the right, I would wager the judiciary is viewed even more warily than the executive.
If the legislature is viewed as a greater protector of liberty it’s because of the nature of the legislative branch. It is much more difficult for 435 to combine and forge a tyranny than a single person. This is a basic tenet of political philosophy dating back to Plato, and that undergirds much of the thinking on this issue. An unrestrained executive can do a lot more damage than an unrestrained legislature.
Barr then contends that the other two branches are interfering in what are otherwise executive functions.
A prime example of this is the Senate’s unprecedented abuse of the advice-and-consent process. The Senate is free to exercise that power to reject unqualified nominees, but that power was never intended to allow the Senate to systematically oppose and draw out the approval process for every appointee so as to prevent the President from building a functional government.
Yet that is precisely what the Senate minority has done from his very first days in office. As of September of this year, the Senate had been forced to invoke cloture on 236 Trump nominees — each of those representing its own massive consumption of legislative time meant only to delay an inevitable confirmation. How many times was cloture invoked on nominees during President Obama’s first term? 17 times. The Second President Bush’s first term? Four times. It is reasonable to wonder whether a future President will actually be able to form a functioning administration if his or her party does not hold the Senate.
There are a couple of aspects of these two paragraphs which are a little odd. First of all, Barr implies that the Senate’s advice and consent functions were never meant to be anything more than a rubber stamp that occasionally rejected unqualified nominees. At least as intended, the advise part of advise and consent was meant quite literally. Thus George Washington went to the Senate chambers the first time the Senate considered a treaty with the full intent of debating and discussing the treaty with the Senate. It did not go well. President Washington, nor any president after him, would try this again. But that doesn’t mean advise and consent has no more substantial meaning than what Barr suggests above.
It is also a bit curious to argue about how often cloture has been invoked, since, well, it was invoked, thus suggesting that each time it’s been tried it has been nothing more than a nuisance.
All that being said, I don’t completely disagree with Barr that the Senate – and in this case the Senate minority – is basically functioning as an irritant and not as a true partner in the process, but one could argue that this is a two-way street with the executive not offering its own concessions.
The most interesting paragraph is the next one:
Congress has in recent years also largely abdicated its core function of legislating on the most pressing issues facing the national government. They either decline to legislate on major questions or, if they do, punt the most difficult and critical issues by making broad delegations to a modern administrative state that they increasingly seek to insulate from Presidential control. This phenomenon first arose in the wake of the Great Depression, as Congress created a number of so-called “independent agencies” and housed them, at least nominally, in the Executive Branch. More recently, the Dodd-Frank Act’s creation of the Consumer Financial Protection Branch, a single-headed independent agency that functions like a junior varsity President for economic regulation, is just one of many examples.
There’s much to this, and I am rather sympathetic to Barr’s argument. This really leads us to the nub of the problem and necessitates a little bit of deep thinking.
Undoubtedly Congress has punted on just about every major issue in recent American history. Congress is a weak institution led by weak men and women. It is also undeniably true that the federal government has grown by leaps and bounds. It is therefore legitimate ask how this massive bureaucracy should be managed. One man (or woman) cannot reasonably be expected to oversee this, thus the creation of different cabinet departments and therefore cabinet heads. But even that’s not enough, and so down the line we go with sub-cabinet secretaries and so on and so forth. There are thousands upon thousands of political appointees to lead these agencies, but they pale in numbers compared to the career employees who do not serve at the behest of the current administration.
The system we have now grew out of the elimination of the spoils system. At the time it made sense to eliminate a system in which hungry office seekers harassed the administration and civil offices were stacked with friends of the administration regardless of their personal merits and qualifications. But as the federal government expanded in size, these career bureaucrats became more important. They are not answerable to the president, and some might cynically suggest they are accountable to nobody. Thus the Attorney General’s implication that the bureaucracy is a cadre of miners working to slowly pick away at the president’s agenda is not entirely without merit. Yet this suggests that the problem is with expansion of the powers of the federal government. Indeed I would suggest that this undermines the Hamiltonian concept of the federal government as one exemplified by energy and dispatch. The more responsibility we throw on the federal government, the less adept it is at moving quickly to address the issues it is competent to deal with.
Long story short: AG Barr is sniffing in the right direction, but he hasn’t exactly fingered the fundamental issues.
We’re about halfway through the Attorney General’s remarks, and we haven’t even touched upon his remarks on the judiciary. So I will stop here and carry on with a review of those remarks in the next post.