Over the last three years, Donald Trump’s authoritarian tendencies have often been frustrated by the law. Here is just one example that was recently reported in the New York Times.
Privately, the president had often talked about fortifying a border wall with a water-filled trench, stocked with snakes or alligators, prompting aides to seek a cost estimate. He wanted the wall electrified, with spikes on top that could pierce human flesh. After publicly suggesting that soldiers shoot migrants if they threw rocks, the president backed off when his staff told him that was illegal. But later in a meeting, aides recalled, he suggested that they shoot migrants in the legs to slow them down. That’s not allowed either, they told him.
The article goes on to report that the staff who pointed to the illegality of the president’s demands have either been removed from their positions or left voluntarily. Every day there are fewer and fewer people in this administration to stop the president from engaging in illegal actions.
During a speech to the Federalist Society on Friday, Attorney General William Barr stated that he was not only proud to serve under Donald Trump, but argued that a president with those tendencies should be given unchecked executive power.
As most legal scholars sound the alarm about a growing unitary executive, Barr made the rather bizarre case for the opposite, demonstrating that there are conservatives who never got over the limits put in place following Nixon’s abuse of power.
I am concerned that the deck has become stacked against the Executive. Since the mid-60s, there has been a steady grinding down of the Executive branch’s authority, that accelerated after Watergate. More and more, the President’s ability to act in areas in which he has discretion has become smothered by the encroachments of the other branches.
It is clear that Barr held those extremist views about executive power before he occupied his current position as attorney general. But to understand why he maintains them in light of a president who is clearly unfit for office, we have to dig a little deeper. The explanation came later in Barr’s speech Friday night when he said this.
The fact of the matter is that, in waging a scorched earth, no-holds-barred war of “Resistance” against this Administration, it is the Left that is engaged in the systematic shredding of norms and the undermining of the rule of law. This highlights a basic disadvantage that conservatives have always had in contesting the political issues of the day. It was adverted to by the old, curmudgeonly Federalist, Fisher Ames, in an essay during the early years of the Republic.
In any age, the so-called progressives treat politics as their religion. Their holy mission is to use the coercive power of the State to remake man and society in their own image, according to an abstract ideal of perfection. Whatever means they use are therefore justified because, by definition, they are a virtuous people pursing a deific end. They are willing to use any means necessary to gain momentary advantage in achieving their end, regardless of collateral consequences and the systemic implications. They never ask whether the actions they take could be justified as a general rule of conduct, equally applicable to all sides.
Conservatives, on the other hand, do not seek an earthly paradise. We are interested in preserving over the long run the proper balance of freedom and order necessary for healthy development of natural civil society and individual human flourishing. This means that we naturally test the propriety and wisdom of action under a “rule of law” standard. The essence of this standard is to ask what the overall impact on society over the long run if the action we are taking, or principle we are applying, in a given circumstance was universalized – that is, would it be good for society over the long haul if this was done in all like circumstances?
For these reasons, conservatives tend to have more scruple over their political tactics and rarely feel that the ends justify the means. And this is as it should be, but there is no getting around the fact that this puts conservatives at a disadvantage when facing progressive holy war, especially when doing so under the weight of a hyper-partisan media.
There is no way to react to that argument other than to realize that William Barr drank the kool-aid a long time ago. The facts are that it is the current iteration of conservatives who have placed their political power over the interests of the country by obliterating norms. For example, did Mitch McConnell ask himself how his denial of hearings for a Supreme Court nominee from a Democratic president would impact society over the long run? Absolutely not. He simply did it and then shamelessly reversed himself when asked whether the same standard would apply to a Republican president.
By casting progressives as inherently malign in their agenda and lawless in their strategies, Barr’s position is that his political opponents lack legitimacy. It is impossible to overstate how dangerous it is for the top law enforcement officer in the country to weigh in so forcefully in demonizing one side of the political divide. In an administration consumed by incompetence and malfeasance, William Barr is second only to Trump in posing a threat to our democracy.
Keep in mind that this is an argument made by an attorney general who doesn’t seem to know the difference between justice and revenge. He is re-instituting the federal death penalty, while proudly serving under a president who pardons war criminals.
I would posit that Barr’s purpose in the speech to the Federalist Society, however, came at the end when he claimed that it is the judicial branch of the government that “has been the prime source of the erosion of separation-of-power principles generally, and Executive Branch authority specifically.”
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.
Other than claiming that his political opponents lack legitimacy, that might be the most bizarre and dangerous argument ever made by an attorney general. If the judiciary isn’t authorized to settle disputes between the executive and legislative branches, then the former has free reign to do as they please until removed from office via an election, which is exactly Barr’s view of executive power.
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. But the emasculation of the judiciary might not sit very well with Gorsuch and Roberts. As Dahlia Lithwick wrote, here are the stakes for the Chief Justice, who actually has a history of supporting executive power.
[Roberts] will be forced to make hard decisions, not just about claims of an imperial presidency, but also about how much the Supreme Court wants to be seen carrying water for laughable legal arguments. For a chief justice who still maintains that there is no such thing as a Bush judge or an Obama judge, the stakes in terms of protecting his independent judiciary couldn’t be higher.
Barr just attempted to put an intellectual veneer on what amounts to a “laughable legal argument.” In the process, he engaged in the most partisan smear of his opponents that we’ve ever heard from an attorney general. If Roberts goes along with him, his court will justifiably live in infamy.
