A brief history of the theory Trump and Barr are using to resist Congressional oversight
The unitary theory of the presidency may be reaching its logical conclusion under President Donald J. Trump. That theory, which is referred to as the unitary executive, holds that presidents have broad, close to unlimited, powers over the executive branch. At its extreme, the theory holds that the president cannot be checked “by Congress or the Courts, especially in critical realms of authority,” as John P. MacKenzie wrote in his book Absolute Power.
The Unitary Executive, as put forward by Attorney General Barr, holds that presidential power over executive branch functions can only be limited by the voters at the next election, or by Congress through its impeachment power. This was essentially the position Barr took in his June 8, 2018 memo to the Justice Department. “Thus, under the Framer’s plan, the determination whether the President is making decisions based on ‘improper’ motives or whether he is ‘faithfully’ discharging his responsibilities is left to the People, through the election process, and the Congress, through the Impeachment process,” Barr wrote. Although Barr does not say it, a president who acted in an improper or faithless way, but who is reelected or who escapes impeachment, could indeed be above the law. Is this really what the Framers intended?
It is first important to recognize that the words “unitary executive” do not appear anywhere in the Constitution, although supporters of the theory claim to be originalists. The first known use of the term occurred during the Reagan Administration, when Attorney General Meese first put the theory forward. It was later used to justify much of President George W. Bush’s War on Terror, including extreme measures like torture in the post 9/11 world. Yet even Assistant Attorney General John Yoo, who advanced the theory during the Bush years by writing the infamous memo enabling the torture of terrorists, recently said in an interview with NPR that “the Constitution grants him [the president] a reservoir of executive power that’s not specifically set out in the Constitution.”
What Article II of the Constitution does provide is a broad statement that “the executive Power shall be vested in a President of the United States of America.” Alexander Hamilton, perhaps the foremost defender of presidential power, wrote in Federalist No. 70 that “energy in the executive is a leading character in the definition of good government.” Hamilton in part equated energy with unity and believed the presidency should be occupied by one person who could act decisively. The Constitutional Convention, which met in Philadelphia over the summer of 1787 and in which Hamilton had participated, debated and then rejected an executive council. But it was not a decision that was reached lightly, and there were numerous members of the Convention that feared a single executive could begin to resemble the British monarch.
Those who feared a strong executive were influenced by the experiences of the colonists in the 1760s and 1770s during the buildup to the eventual break with Great Britain. During that time, royal governors, appointed by the King, had often dissolved local colonial assemblies when they disagreed with their decision sand regularly vetoed bills. The opponents of a strong executive now feared the return to monarchy, which they had fought to overturn during the Revolutionary War. The concerns they held, which focused largely on the concentration of power in the hands of one individual, had led to the weakening of executive power at the state level in the constitutions approved immediately following the Declaration of Independence.
Yet the lack of a strong executive had led to numerous problems, both during the Revolutionary War and during the years the new republic was governed by the Articles of Confederation. The Convention finally settled on a single executive, but that decision was affected by the presence of Washington at the Convention. Franklin, who opposed a single executive and preferred some form of an executive council, seemed to allude to this when he said, “The first man put at the helm will be a good one. Nobody knows what sort may come afterwards.” Pierce Butler of South Carolina wrote in a 1788 letter that, “many of the members cast their eyes towards General Washington as President and shaped their ideas of the powers to be given to a President by their opinions of his virtue.” It was clear that most members of the Convention, although concerned about placing too much power in the hands of any one man, were willing to place much more power in the new office of president because of their great respect for Washington. One historian has argued: “had Washington been absent, it is entirely possible that the framers of the Constitution would have created a multiple executive,” or at least have created an office that the legislature would select.
We need a balanced approach to our governmental institutions, just as the Framers intended. An energetic head of state is certainly part of this formula. As the political scientist Judith Best has observed “the ship of state cannot do without the pilot who sets the course, who knows where the shoals and reefs lie, and who can direct all hands.” What we do not need is an Imperial President, in Arthur Schlesinge rJr.’s words. Presidential overreach is especially dangerous when the ship of state is being guided by a man who lacks Washington’s sense of virtue. Even Hamilton feared an overly powerful executive and thought “the executive power is more easily confined when it is one” since it is easier to find misconduct when one person bears responsibility for the office of the presidency.
It is not unusual that the Congress and the President sometimes butt heads. All presidents chafe at oversight by the legislative branch, which can sometimes be overbearing. Madison fully expected this, writing in Federalist No. 51 that “ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.” Out of these conflicts each branch would, it was hoped, remain within its orbit.
Yet we have also learned that the branches of government must find ways to work together with a certain degree of mutual forbearance. A good example occurred early in our history during the Jefferson Administration. During the treason trial of Aaron Burr, Chief Justice John Marshall had a subpoena served to President Jefferson to produce documents. “The English principle that the King could do no wrong, Marshall said, did not apply to the United States where the President…was subject to the same law as every other American,” as Schlesinger has written. But Marshall did not fully press his authority, and Jefferson was not required to appear in court. Jefferson’s view was that Marshall wanted him to “abandon superior duties” to inferior ones. “Both men were surely correct,” according to Schlesinger, and in the future courts would try to find that balance between enforcing the law equally upon everyone while recognizing the official duties a president must fulfill.
The concept of Congressional oversight over the executive branch is a long-established precedent in the United States, a practice that traces back to our British roots. As early as 1792, the House established a special committee to investigate certain executive branch actions, and Madison and four members of the Constitutional Convention voted for the inquiry, indicating they thought this was a core function of the Congress. In a 1927 Supreme Court decision, the Court found that “the power of the Congress to conduct investigations is inherent in the legislative process [and] that power is broad.” It has often been the Supreme Court that has required presidents who overstep their bounds to comply with Congressional mandates. When Richard Nixon refused to turn over his tapes during the Watergate crisis, the Supreme Court ordered him to do so, leading to his eventual resignation from office.
The Supreme Court has in fact ruled twice on the unitary executive theory, and both times rejected the concept. In Morrison v. Olson, decided in 1988, the Court majority decided that the special counsel statute did not violate the separation of powers. Justice Scalia, alone among the justices, issued a scathing dissent largely along the lines of the theory of the unitary executive. “Morrison shattered the claim that the vesting of ‘the executive power’ in a president under Article II of the Constitution created a hermetic unit free from the checks and balances apart from the community,” MacKenzie wrote in Absolute Power. In 2006, the Supreme Court again issued a stinging rebuke to executive overreach in Hamdan v. Rumsfeld, a case that dealt with the use of military commissions to try terrorists at Guantanamo Bay. As Justice Breyer wrote for the majority, “The Court’s conclusion ultimately rests upon a single ground: Congress has not issued the Executive a ‘blank check’ to create military commissions,” and told the Bush Administration that they should seek Congressional approval, which they ultimately received.
Not every adherent to the unitary executive theory accepts that the president has absolute power. Steven Calabresi, a major supporter of the theory, has written that “there are some people who believe that the President has the prerogative powers of King George III in foreign and domestic policy,” but that he does not “fall into that category.” Still, others have used the theory, or at least the concept, of unfettered presidential power. Richard Nixon, whose presidency predated the use of the term, once told David Frost in the aftermath of Watergate that “when the President does it that means its not illegal.” Dick Cheney, while a member of the House in 1987, was even more blunt when he dissented from the majority report on the Iran-Contra affair. “The Chief Executive will on occasion feel duty bound to assert monarchical notions of prerogative that will permit him to exceed the laws.”
What is so shocking today is President Trump’s absolute refusal to comply with Congressional requests for information and testimony from some of his top aides regarding the recently released Mueller Report. One must wonder what advice he is receiving from his Attorney General, and whether Barr’s support of the unitary executive affects such advice. Lawyers for Donald Trump seem to adhere to the more extreme version of the unitary executive theory. In a letter dated May 15, 2019 to Chairman Jerold Nadler of the House Judiciary Committee, Trump’s legal counsel questioned whether the Committee’s inquiry was designed to “further a legitimate legislative purpose” or was designed to harass and embarrass “political opponents.” Nadler’s response went to the heart of the matter, indicating that first the Justice Department said it “cannot indict” a sitting president and “now it adds the extreme claim that Congress cannot act either…this flies in the face of the American idea that no one is above the law, and I reject it,” according to Nadler. It also is inconsistent with the Mueller Report, which found that “Congress may apply the obstruction laws to the President’s corrupt exercise of powers” since it “accords with our constitutional system of checks and balances and the principle that no person is above the law.” In the meantime, lower courts have begun to act, requiring that the President comply with certain demands for information.
Part of the tragedy of recent events is that William Barr came into the job of Attorney General with a solid reputation. It now appears to many of us that he has decided to protect Donald Trump at all costs, and not the office of the presidency, as he claims. The unitary executive theory which Barr supports is a dangerous doctrine when applied in the most extreme manner. Now it has been put at the service of a man with clear autocratic tendencies who knows no limits and respects no norms, a man who wants to use the power of the presidency to punish his enemies. If Barr really wants to save the presidency, he might start by rethinking his support for unlimited presidential power under the guise of the unitary executive. Otherwise he may leave the House of Representatives with little choice but to open an impeachment inquiry in order to do their jobs. But then perhaps that is what his boss really wants.