Has the Supreme Court Bought Into Barr’s View of Executive Power?

If so, they would neuter congressional oversight and give the president free reign to do as he pleases.

As I’ve been suggesting for a while now, the Supreme Court is set to issue rulings on three cases this summer that will have a major impact on the November election. They include:

  1. A ruling on the constitutionality of DACA,
  2. A ruling on a case that would completely undermine Roe vs. Wade, and
  3. A ruling on subpoenas for Trump’s financial records.

Over the years, I’ve learned to wait until the Supreme Court actually issues their rulings. Too many people have tried to guess their intentions during oral arguments, only to be proven wrong. But on Monday, the Court asked for additional briefs in the case about Trump’s financial records. Their request doesn’t bode well for the outcome.

The parties and the Solicitor General are directed to file supplemental letter briefs addressing whether the political question doctrine or related justiciability principles bear on the court’s adjudication of these cases.

It is helpful to note what they mean by “the political question doctrine or related justiciability principles.”

Federal courts will refuse to hear a case if they find that it presents a political question. This doctrine refers to the idea that an issue is so politically charged that federal courts, which are typically viewed as the apolitical branch of government, should not hear the issue. The doctrine is also referred to as the justiciability doctrine or the nonjusticiability doctrine.

Apparently there is some question among the Supreme Court Justices about whether they should be the “deciders” on this particular case because it is a “political dispute” between Congress (who subpoenaed Trump’s financial records) and the president.

Perhaps that question would have been raised under any circumstances. But this very issue was addressed by Attorney General William Barr during his speech to the Federalist Society back in November. As a reminder, Barr made a rather robust defense of executive power, attempting to ground it in the beliefs of our founding fathers. Even conservative legal scholars claimed his remarks were “incongruous” with constitutional checks and balances.

In talking about his belief that Congress has encroached on executive power, Barr went into what can only be described as a partisan rant, claiming that progressives “are willing to use any means necessary to gain momentary advantage in achieving their end, regardless of collateral consequences and the systemic implications.”

Barr went on to discuss his views about how the courts have “substantially undercut the functioning of the Presidency.”

The Framers did not envision that the Courts would play the role of arbiter of turf disputes between the political branches… That omission makes sense. When the Judiciary purports to pronounce a conclusive resolution to constitutional disputes between the other two branches, it does not act as a co-equal… The long experience of our country is that the political branches can work out their constitutional differences without resort to the courts.

Here is what I wrote in response to that speech by Barr.

The attorney general is aware of the fact that challenges to his extremist views on executive power are working their way through the courts and will shortly reach the Supreme Court. Those include everything from subpoenas issued during the impeachment inquiry to demands for the release of Trump’s tax returns. Barr goes to great lengths to argue that the judiciary is not authorized to be the arbiter of separation of powers disputes between the legislative and executive branches of government…

I wouldn’t be surprised to see this kind of argument taken up by Supreme Court justices like Alito, Thomas, and Kavanaugh. It is very likely that Barr gave this speech precisely to lay it out for them and Trump’s supporters in the Federalist Society.

With the Supreme Court asking for additional briefs to address whether this case about the release of Trump’s financial records raises the “political question doctrine,” it is very possible that Barr’s speech reached its intended audience. That doesn’t indicate how the Court will rule. But were they to determine that this case is a “political question” that doesn’t belong in the courts, they will affirm Barr’s view of executive power, neutering congressional oversight and granting the president free reign to do as he pleases until removed from office via an election.

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Nancy LeTourneau

Nancy LeTourneau is a contributing writer for the Washington Monthly. Follow her on Twitter @Smartypants60.