A Weak Attack on William Barr’s Nomination to Be Attorney General

Finally, adopting a hysterical tone, Hemel and Posner write:

Remember when President Trump demanded “loyalty” from [former FBI director James] Comey? If Mr. Barr is confirmed as attorney general, it looks as though the president will get what he wanted. “He alone is the Executive branch,” Mr. Barr wrote of the president. The attorney general and the Justice Department lawyers “who exercise prosecutorial discretion on his behalf” are “merely ‘his hand.’” These bizarre statements are not those of a lawyer but of a courtier.

Actually, far from “bizarre statements,” Barr’s assertions reflect the views of the late, great Justice Antonin Scalia in his much-admired dissent in Morrison v. Olson (1988). The Constitution says, “The executive Power shall be vested in a President of the United States.” As Justice Scalia memorably explained, “this does not mean some of the executive power, but all of the executive power.” Such estimable scholars as Hemel and Posner must know that Barr — far from sending a signal about “loyalty,” which former director Comey alleges President Trump demanded of him — was merely articulating the “unitary executive” theory. That theory, rooted in constitutional law, holds that Article II vests all executive power in a single official, the president; therefore, subordinates appointed to wield executive power, including government lawyers exercising prosecutorial discretion, do so as delegates of the chief executive. That, indeed, is why all executive officers serve at the pleasure of the president, who does not need a reason to dismiss them.

The professors and the Times may not like the unitary executive — most progressives do not, at least when the White House is not occupied by a Democrat. But it is beneath Hemel and Posner to pretend that the articulation of a venerable legal theory, advanced by a lawyer who is widely acclaimed to be exceptional and with whom the president was not acquainted until recently, is the flattery of a “courtier.”

The Supernumerary Executive

Conservatives who think about constitutional and legal issues, the administrative state, and the executive branch have argued for many years now for the importance of the so-called “unitary executive” model of the presidency.

.. And conservatives therefore tend to recoil from the notion that the broader executive branch has its own distinct prerogatives and exists apart from the president as a kind of administrative state onto itself.

But when you talk to senior officials in this administration about their work, and when you listen to the ways they talk about it with journalists and activists, it’s hard to avoid the conclusion that what we are seeing in the Trump era so far is the emergence of something like the inverse of the unitary executive. 

.. Today, the people who occupy executive-branch positions (in the White House and in other agencies) are all trying to administer the government as if there were a president in office directing their work in the ways presidents generally do, even as they know that isn’t quite the case. And when people raise concerns with them about something the president has said, they respond by offering calming assurances that there is a body of people governing precisely not as extensions of the president. They say “the system is working,” and they mean we have a functional administration most of the time despite what’s going on at the top

.. The national security team calms foreign and domestic worries by pointing to the layered infrastructure of decisionmaking they have tried to set up. Social and fiscal conservatives on the inside calm those on the outside by pointing to the work being done by various appointees. When the most populist and nationalist of Trump’s supporters become worried that he might be abandoning them to make deals with swamp dwellers they are reassured by like-minded people very close to the president that he will soon enough move on and let them work. These various calming voices are of course in some tension with one another, but they are in agreement that at this point what the administration does is not connected to what the president says in the usual way.

.. But once in a while—through Twitter or an interview—we get a glimpse of Trump himself that has the feel of a fleeting glance into the dark, swirling maw of a shrieking brute, angry and in pain, and kept out of view by careful machinations. 

.. But the idea that there is much more to the executive than the president is a form of a problem with the administrative state that conservatives normally, and rightly, worry about.

.. Like the importance of character in leadership, this longstanding conservative concern is a subject many on the Right will probably feel is better avoided or dismissed while this particular president is in office. But as with the character question, it sure seems like there will be a price to pay in time.