Attorney General William Barr’s November 15 speech before the Federalist Society, delivered at its annual National Lawyers Convention, received considerable attention.Barr attacked what he views as progressives’ unscrupulous and relentless attacks on President Trump and Senate Democrats’ “abuse of the advice-and-consent process.” Ironies notwithstanding, the core analysis of his speech is a full-throated defense of the Unitary theory of executive power, which purports to be an Originalist view of the Founders’ intent.
This defense, however, reveals the two fundamental flaws of the Unitary view: first, that it is built on a fictional reading of constitutional design; and second, that its precepts attack the fundamental tenets of the checks and balances system that the Founders did create.
Barr’s speech begins with his complaint that presidential power has been weakened in recent decades by the “steady encroachment” of executive powers by the other branches. Even allowing for congressional resurgence in the post-Watergate era of the 1970s, no sane analysis of the Reagan era forward could buttress Barr’s ahistorical claim. Ironically, the presidents in this time period who suffered political reversals—Bill Clinton’s impeachment and the thwarting of Barack Obama’s agenda by congressional Republicans in his final six years of office—nevertheless emerged from their terms with the office intact in powers and prestige.