Barr Bridges the Reagan Revolution and Trump on Executive Power

WASHINGTON — The midst of a swelling impeachment inquiry over abuse-of-power allegations might seem like an odd moment for Attorney General William P. Barr to deliver a high-profile speech linking his lifelong vision of maximalist presidential power with a defense of President Trump’s use of executive authority.

But a head-turning, at times partisan speech that Mr. Barr gave on Friday to the Federalist Society made sense from another perspective: He and other legal conservatives are on the cusp of victory in a generational project that traces back to the Reagan Revolution of the 1980s, and they know its perceived legitimacy will inevitably be intertwined with that of Mr. Trump’s presidency.

That project has been to transform the judiciary — and use it to expand the legal scope of executive power and to achieve longstanding conservative policy goals like rolling back regulations and abortion rights. Mr. Trump brought conservatives closer to their aim by permitting stalwarts from the Federalist Society — the network of movement conservative lawyers founded in the Reagan years — to suggest judicial nominees whom he appointed.

“It is critical to our nation’s future that we restore and preserve in full vigor our founding principles,” Mr. Barr said. “Not the least of these is the framers’ vision of a strong, independent executive, chosen by the country as a whole.”

But the executive power ideology of Mr. Barr — who praised Mr. Trump for having “taken up that torch” with his judicial appointments — is more immediately rooted in the partisan battles of Ronald Reagan’s 1980s than it is in George Washington’s 1780s.

Mr. Barr got his political start working on domestic policy for the Reagan White House, which was trying to curtail regulations, cut taxes, weaken unions and push a socially conservative agenda on issues like abortion and affirmative action. The administration separately tried to increase military spending and confront the Soviet Union and its proxies more aggressively.

When congressional Democrats used their power to impede Reagan’s agenda, like conducting oversight investigations into political appointees at regulatory agencies and outlawing support to anti-Marxist militants in Nicaragua, frustrated Reaganites began looking for ways to achieve their goals without congressional approval.

At the same time, members of the conservative legal movement were calling for judicial restraint in part as a reaction to decades of liberal Supreme Court rulings. They developed the doctrine of “originalism” — the notion that judges should interpret the Constitution based on its original meaning and not as a living document whose meaning evolves with society.

Amid the swirl, Republican legal thinkers came to associate the goal of expanding executive power with Reagan’s substantive policy agenda — turning it into a conservative tenet. And they sought to root this goal in originalism, developing arguments that the founders intended for fewer checks and balances on the presidency than scholars generally understood.

A key figure in this ideological transformation was Edwin Meese III, a top aide to Reagan who eventually rose to attorney general. He brought in many aggressive young movement conservative lawyers and put them to work inventing theories of executive power that could help Reagan achieve his policy agenda unilaterally.

On Friday, Mr. Barr opened his speech by talking about how honored he was to have worked alongside Mr. Meese, citing as a “watershed for the cause” of the conservative legal movement “the decision of the American people to send Ronald Reagan to the White House, accompanied by his close adviser Edwin Meese and a cadre of others” who embraced originalism.

“I am also proud to serve as the attorney general under President Trump, who has taken up that torch in his judicial appointments,” Mr. Barr added.

For much of the speech, he detailed the executive-power ideas that the Reaganites developed and he embraced. Essentially, their notion is that the mainstream understanding of separation of powers — that the Constitution divides government control among three coequal branches that share overlapping authorities so they can check and balance each other — is wrong.

“Whenever I see a court opinion that uses the word ‘share,’ I want to run in the other direction,” Mr. Barr said. “It reminds me of my — there’s a kid at my grandchild’s preschool who, as soon as my grandchild is playing with a toy, reaches over, and says, ‘Share? Share?’”

Instead, in the Reaganites’ view, each branch has near-total authority over its own domain. For example, Congress can create a Federal Reserve and empower it to set interest rates. But, their theory went, the part of that agency’s law which also made its board independent from presidential control when deciding what rates to set was unconstitutional.

Their theory was incompatible with a 1935 Supreme Court ruling upholding independent agencies. And in 1988, it failed again. Dashing the Reaganites’ hopes, the court overwhelmingly upheld a law permitting independent counsels — prosecutors who wield executive power beyond presidential control.

Mr. Barr brought up in his speech an aspect of the Reaganites’ revisionist interpretation of how separation of powers works, sometimes called the unitary executive theory, drawing laughs by waving his hands and exclaiming “aaaahh!” like someone scared by a ghost. He insisted: “This is not ‘new’ and it is not a ‘theory.’ It is a description of what the Framers unquestionably did in Article II of the Constitution.” The audience burst into applause.

For now, it is a theory, though it could become law if the new-look Supreme Court majority — including Mr. Trump’s appointees of Justices Neil M. Gorsuch and Brett M. Kavanaugh — eventually get a chance to overrule precedents.

But existing court rulings belie Mr. Barr’s boast that the theory is “unquestionably” true, as does skepticism about the work of Mr. Meese’s team among an older generation of conservative lawyers — even some who worked in the Reagan administration.

The Reagan legal team’s vision for the separation of powers, despite its “perfect logic” and “beautiful symmetry,” was “not literally compelled by the words of the Constitution. Nor did the framers’ intent compel this view,” Charles Fried, a Harvard professor and Reagan’s solicitor general, wrote in his 1991 memoir “Order and Law: Arguing the Reagan Revolution — a Firsthand Account.”

Mr. Fried also disparaged Mr. Meese’s cadre of young advisers who “thought of themselves as revolutionaries” for writing provocative speeches for Mr. Meese where he took “extreme positions, such as questioning the constitutionality of independent agencies or suggesting that the president need not obey Supreme Court decisions with which he disagrees.”

Indeed, a dissenting voice appeared in a 1986 internal Meese Justice Department report on ways to expand executive power. It laid out the theory that government power is divided cleanly among the branches — not shared, as Mr. Barr also expounded on in his speech.

In the report, which I uncovered in the National Archives while researching a book, this unidentified official warned that short-term political contingencies were clouding the administration’s thinking about the long-term importance of maintaining congressional checks on executive power to limit government.

Frustrated by obstacles to their political agenda, some conservatives were now “inclined to make an exception to their usual respect for separation of powers and advocate a very strong president — primarily for the practical reason that an activist conservative currently sits in the White House, and they fear he may be the last,” the dissenter warned.

In light of that critique, one part of Mr. Barr’s his speech was striking. He claimed that conservatives endorsed actions and principles that would be “good for society over the long haul if this was done in all like circumstances,” while liberals used “any means necessary to gain momentary advantage in achieving their end, regardless of collateral consequences.”

Defending Mr. Trump from the accusation that he has “shredded” constitutional norms and undermined the rule of law, Mr. Barr also said liberals were instead the ones guilty of that. Rather than behaving like the “loyal opposition,” he said, they have acted like Mr. Trump is not the legitimate president and set out to sabotage his duly elected government.

And, in implicitly uniting his two themes, Mr. Barr invoked Mr. Trump’s ban on travelers from several Muslim-majority countries. Lower courts blocked the administration from enforcing its ban, ruling that it was motivated by unconstitutional religious animus. But last year, the Supreme Court let a watered-down version of the ban go into effect.

But in portraying that outcome as “vindication,” Mr. Barr did not mention that the Supreme Court ruling was 5 to 4. Mr. Gorsuch — whom Mr. Trump installed in the seat that Republicans, in an extraordinary exercise of constitutional hardball, would not let President Barack Obama fill in 2016 — provided the pivotal vote.

The result foreshadowed the prospect of many more such vindications for the worldview of movement conservatives like Mr. Barr in years to come.

Source: Read Full Article