Conservative lawyers rap William Barr’s Federalist Society speech on presidential power

A group of conservative lawyers Monday denounced Attorney General William Barr’s recent remarks that a president has absolute power over the executive branch, saying his expansive view on presidential power contradicts long-standing conservative principles.

The group, known as Checks & Balances, said Mr. Barr’s interpretation of the Constitution is flat-out wrong, and they penned a letter to the attorney general saying he “rewrote history” with “an unsupported claim.”

“Barr’s view of history including his claims that the founders shared in any respect his vision of an unchecked president and his assertion that the view was dominant until it came under attack from the courts and Congress a few decades ago, has no factual basis,” the lawyers wrote.

Checks & Balances is comprised of lawyers who have held high-level positions in previous Republican administrations. Its members include George Conway, husband of White House counselor Kellyanne Conway and a frequent critic of President Trump, and Donald Ayer, former deputy attorney general under President George H.W. Bush.

In a speech earlier this month to the right-leaning Federalist Society, Mr. Barr said he supports what’s known as the “unitary executive theory.”

The theory espouses the view that presidents control the entire executive branch. Supporters of the theory believe the president can dictate policies for all of the agencies under the executive branch and neither Congress nor the federal courts can tell the president what to do or how to do it.

The unitary executive theory has been frequently raised during House Democrats’ impeachment inquiry. Mr. Trump’s attorneys have cited it to keep key witnesses from testifying.

Mr. Barr has long supported the unitary executive theory, he told the Federalist Society.

“In reality, the idea of the unitary executive does not go so much to the breadth of presidential power; rather, the idea is that whatever the executive power may be, those powers must be exercised under the president’s supervision,” he said. “This is not new and it’s not a theory, it’s a description of what the framers did in Article II,” he said.

Congress and the courts have chipped away at presidential powers for years, said Mr. Barr.

“I’m concerned that the deck has become stacked against the executive and that since the mid-’60s there’s been a steady grinding down of the executive branch’s authority that accelerated after Watergate,” he said. “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.”

The conservative lawyers said the view doesn’t hold water.

“The founders deliberately created a government of checks and balances, and the effectiveness of different presidents in exercising power within that framework has varied widely,” they wrote.

“Indeed, the greatest assertions of presidential power have come in the last half-century,” the letter continued. “That our system has met those assertions with balanced responses of the other two co-equal branches is hardly a reason to abandon now the system that has served us well for so long.”