Everyone wants to know what William Barr considers the limits of presidential power. Barr, if confirmed as attorney general, would be the top law enforcement officer of the country while working for President Trump, whose campaign is under federal investigation and who doesn’t have a reputation as a stickler for the law.
Barr has confused the Beltway by articulating two views that some people in our unnuanced political culture think are contradictory. He subscribes to the idea of the “unitary executive,” while also saying it would be “a breach of [the president’s] constitutional duty” to intervene in certain investigations.
There is, in truth, no contradiction in these two positions. There is instead a fine distinction that our leaders desperately need to relearn.
The idea of the “unitary executive” is controversial these days, but it shouldn’t be. It means that the entire executive branch is under the control of the president. Every appointee, bureaucrat, and agency contractor is an agent of the president. This is the only reasonable reading of the first sentence of Article II of the Constitution: “The executive Power shall be vested in a President of the United States of America.” And it has been repeatedly reaffirmed by the Supreme Court.
The executive power is not vested in the president and the FBI and the Environmental Protection Agency and so on. It is vested in the president, and he delegates some authority to other agencies and individuals.
This view upsets some of Trump’s critics because they want the bureaucracy to act as a fourth branch of government to resist Trump. You may recall the early days of Trump when anonymous celebrity Twitter accounts pledged to be the #Resistance inside EPA or other agencies. You may recall the celebration of Sally Yates, at the Department of Justice, for refusing to enforce a law she disagreed with.
But there is no fourth branch of government. The executive is the president and his agents.
(The idea of the “unitary executive” should not be conflated with the question of a “stronger executive.” We have repeatedly written that the executive branch has seized too much power from Congress. Barr, unfortunately, seems to disagree with us on this score.)
One significant consequence of the unitary executive is that the Department of Justice and the FBI work for the president. Barr wrote in 2018 that “the president’s law enforcement powers extend to all matters, including those in which he had a personal stake.”
Senators asked him about this, and his answer confused many: “If a president attempts to intervene in a matter that he has an interest in, that first should be looked at as a breach of his constitutional duty.”
How can you hold that the president has power over all law enforcement matters, yet also that he has a constitutional duty in some cases to stay out? The most ardent Trump foes, like Presidents Bill Clinton’s and Richard Nixon’s foes before them, have hated the idea of the unitary executive precisely because they want a legal structure under which the FBI doesn’t work for the president.
The key is Barr’s word choice: “power” versus “duty.”
The president has the constitutional power to interfere with or order any investigation. But he has a duty to do so faithfully and not corruptly. If he uses his power to prevent fair enforcement of the law, he is violating his oath to “faithfully execute the Office of President of the United States.”
Duty is not a popular idea these days. It sounds too moralistic in our relativistic epoch. But abandoning duty hasn’t left us more free. We have replaced duty with an ever-growing catalog of legal mandates and rules.
Today, this legalistic mindset leads to calls for explicit rules and government structures to limit the president’s power to control the executive. (There are also calls to limit congressional powers, for example, by subordinating its oversight to investigations by executive agencies.) But that’s not the system our founders built.
They built us a system where the executive branch is an extension of the president and where the president is constrained by his constitutional duty.
Barr got it right. He is obviously qualified for the job.
