Article II Executive Power Under Assault

Earlier this month, Attorney General William Barr gave a thoughtful and important speech on the nature of the executive power and the separation of powers under the Constitution.  He opened by saying the Democrats’ unrelenting resistance to the legitimacy of the Trump presidency undermines the Rule of Law.  But he mostly talked about how the legislative and judicial branches have improperly chipped away at the power of the executive branch in recent decades.

The current Congress has abused its advice and consent power by opposing every single one of Trump’s appointments.  There have been 236 cloture votes so far to unblock Trump’s nominees, compared to just 17 in all of Obama’s presidency.  Congress has also abused its oversight role, unleashing an avalanche of subpoenas to incapacitate the executive branch.  There was a time when Congress respected the executive’s need to hold confidential internal discussions, but Congress now calls assertions of executive privilege obstruction of justice subject to congressional contempt.

The judiciary has also encroached on the Trump presidency by setting itself up as the ultimate arbiter of separation of powers questions between the legislative and the executive, instead of leaving such questions to the political process.  Judges have also usurped presidential authority by expanding the scope of judicial review and substituting their own judgment in place of the executive’s in foreign policy and national security matters like the travel ban.  Finally, federal district judges have stymied the executive like never before with nationwide injunctions.  There have been 40 since Trump was elected, compared to just two in the first two years of Obama’s presidency. 

Bottom line, Barr said, is the Left is “engaged in the systematic shredding of norms and the undermining of the Rule of Law.” 

The Founders carefully calibrated the executive power and intended for the executive to be independent, not subordinate to Congress.  They drew up a Constitution with three co-equal branches and an executive strong and decisive enough to deal with national emergencies and the prosecution of war.  They saw how the Articles of Confederation’s deficiencies in this regard almost caused us to lose the Revolutionary War.  They put the Article II executive power in the hands of a single person, not a deliberative council.  This is called the “unitary executive” and, while the Left may consider it merely a theory, it is nothing more than exactly what the Constitution says.  

There is more - a lot more - in Barr’s speech and I commend it to you in its entirety.  It’s well worth your time. 

[Prepared Text]  [Video]