The Role of the Executive.

• Author: Barr, William P.

Good Evening. Thank you all for being here. And thank you to Gene Meyer for your kind introduction.

It is an honor to be here this evening delivering the Nineteenth Annual Barbara K. Olson Memorial Lecture. I had the privilege of knowing Barbara and had deep affection for her. I miss her brilliance and ebullient spirit. It is a privilege for me to participate in this series, which honors her.

The theme for this year's Annual Convention is "Originalism," which is a fitting choice--though, dare I say, a somewhat "unoriginal" one for the Federalist Society. I say that because the Federalist Society has played an historic role in taking originalism "mainstream." (1) While other organizations have contributed to the cause, the Federalist Society has been in the vanguard.

A watershed for the cause was the decision of the American people to send Ronald Reagan to the White House, accompanied by his close advisor Ed Meese and a cadre of others who were firmly committed to an originalist approach to the law. (2) I was honored to work with Ed in the Reagan White House and be there several weeks ago when President Trump presented him with the Presidential Medal of Freedom. As the President aptly noted, over the course of his career, Ed Meese has been among the nation's "most eloquent champions for following the Constitution as written." (3)

I am also proud to serve as the Attorney General under President Trump, who has taken up that torch in his judicial appointments. That is true of his two outstanding appointments to the Supreme Court, Justices Neil Gorsuch and Brett Kavanaugh; of the many superb court of appeals and district court judges he has appointed, many of whom are here this week; and of the many outstanding judicial nominees to come, many of whom are also here this week.

I wanted to choose a topic for this afternoon's lecture that had an originalist angle. It will likely come as little surprise to this group that I have chosen to speak about the Constitution's approach to executive power.

I deeply admire the American presidency as a political and constitutional institution. I believe it is one of the great and remarkable innovations in our Constitution, and it has been one of the most successful features of the Constitution in protecting the liberties of the American people. More than any other branch, it has fulfilled the expectations of the Framers.

Unfortunately, over the past several decades, we have seen steady encroachment on presidential authority by the other branches of government. (4) This process, I think, has substantially weakened the functioning of the executive branch, to the detriment of the nation. This evening, I would like to expand a bit on these themes.

1. THE FRAMERS' VIEW OF THE EXECUTIVE

   First, let me say a little about what the Framers had in mind in establishing an independent executive in Article II of the Constitution.

   The grammar school civics class version of our Revolution is that it was a rebellion against monarchial tyranny and that, in framing our Constitution, one of the main preoccupations of the Founders was to keep the executive branch weak. (5) This is misguided. By the time of the Glorious Revolution of 1689, monarchical power was effectively neutered and had begun its steady decline. (6) Parliamentary power was well on its way to supremacy and was effectively in the driver's seat. By the time of the American Revolution, the patriots well understood that their prime antagonist was an overweening Parliament. (7) Indeed, British thinkers came to conceive of Parliament, rather than the people, as the seat of sovereignty. (8)

   During the Revolutionary era, American thinkers who considered inaugurating a republican form of government tended to think of the executive component as essentially an errand boy of a supreme legislative branch. Often the executive (sometimes constituted as a multimember council) was conceived as a creature of the legislature, dependent on and subservient to that body, whose sole function was carrying out the legislative will. (9) Under the Articles of Confederation, for example, there was no executive separate from Congress. (10)

   Things changed by the Constitutional Convention of 1787. To my mind, the real "miracle" in Philadelphia that summer was the creation of a strong executive, independent of, and coequal with, the other two branches of government.

   The consensus for a strong, independent executive arose from the Framers' experience in the Revolution and under the Articles of Confederation. (11) They had seen that the war had almost been lost and was a bumbling enterprise because of the lack of strong executive leadership. (12) Under the Articles of Confederation, they had been mortified at the inability of the United States to protect itself against foreign impositions or to be taken seriously on the international stage. (13) They had also seen that, after the Revolution, too many States had adopted constitutions with weak executives overly subordinate to the legislatures. (14) Where this had been the case, state governments had proven incompetent and indeed tyrannical. (15)

   From these practical experiences, the Framers had come to appreciate that, to be successful, republican government required the capacity to act with energy, consistency, and decisiveness. (16) They had come to agree that those attributes could best be provided by making the executive power independent of the divided counsels of the legislative branch and vesting the executive power in the hands of a solitary individual, regularly elected for a limited term by the nation as a whole. (17) As Jefferson put it, "[F]or the prompt, clear, and consistent action so necessary in an Executive, unity of person is necessary ...." (18)

   While there may have been some differences among the Framers as to the precise scope of executive power in particular areas, there was general agreement about its nature. Just as the great separation-of-powers theorists--Polybius, Montesquieu, Locke--had, the Framers thought of executive power as a distinct species of power. (19) To be sure, executive power includes the responsibility for carrying into effect the laws passed by the legislature--that is, applying the general rules to a particular situation. (20) But the Framers understood that executive power meant more than this.

   It also entailed the power to handle essential sovereign functions--such as the conduct of foreign relations and the prosecution of war--which by their very nature cannot be directed by a preexisting legal regime but rather demand speed, secrecy, unity of purpose, and prudent judgment to meet contingent circumstances. (21) They agreed that--due to the very nature of the activities involved, and the kind of decisionmaking they require--the Constitution generally vested authority over these spheres in the Executive. (22) For example, Jefferson, our first Secretary of State, described the conduct of foreign relations as "executive altogether," subject only to the explicit exceptions defined in the Constitution, such as the Senate's power to ratify treaties. (23)

   A related and third aspect of executive power is the power to address exigent circumstances that demand quick action to protect the well-being of the nation but on which the law is either silent or inadequate--such as dealing with a plague or natural disaster. This residual power to meet contingency is essentially the federative power discussed by Locke in his Second Treatise. (24)

   And, finally, there are the Executive's powers of internal management. These are the powers necessary for the President to superintend and control the executive function, including the powers necessary to protect the independence of the executive branch and the confidentiality of its internal deliberations. Some of these powers are express in the Constitution, such as the appointment power, (25) and others are implicit, such as the removal power. (26)

   One of the more amusing aspects of modern progressive polemic is their breathless attacks on the "unitary executive theory." (27) They portray this as some new-fangled "theory" to justify executive power of sweeping scope. 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 powers may be, they must be exercised under the President's supervision. (28) 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. (29)

   After you decide to establish an executive function independent of the legislature, naturally the next question is who will perform that function? The Framers had two potential models. They could insinuate "checks and balances" into the executive branch itself by conferring executive power on multiple individuals (a council) thus dividing the power. (30) Alternatively, they could vest executive power in a solitary individual. (31) The Framers quite explicitly chose the latter model because they believed that vesting executive authority in one person would imbue the presidency with precisely the attributes necessary for energetic government. (32) Even Jefferson--usually seen as less of a hawk than Hamilton on executive power (33)--was insistent that executive power be placed in single hands, and he cited America's unitary executive as a signal feature that distinguished America's success from France's failed republican experiment. (34)

   The implications of the Framers' decision are obvious. If Congress attempts to vest the power to execute the law in someone beyond the control of the President, it contravenes the Framers' clear intent to vest that power in a single person, the President. (35) So much for this supposedly nefarious theory of the unitary executive.

2. ENCROACHMENTS ON THE EXECUTIVE BRANCH TODAY

   We all understand that the Framers expected that the three branches would be jostling and...