The first indictment attacks constitutional judicial review by independent courts, which on occasion have held that the executive branch has usurped power assigned by the Constitution to Congress. These disputes should be settled between Congress and the executive without any judicial interference, he says. (Bear in mind that he has already sought to disable congressional oversight.)
The second transgression is in courts’ independent exposition of statutes, or, as Barr puts it, “expanding both the scope and intensity of judicial review.” This is a settled practice by which courts measure executive actions against the statutes giving the president authority to take them. Presidents have very little “inherent” authority, and not very much direct textual authority, either. Most of what they do is “execute” statutes, using powers assigned by Congress.
That is what was at stake in Trump v. Hawaii, the “travel ban” case, in which the courts examined whether the president had followed the Immigration and Nationality Act by proclaiming a bar on entry into the U.S. by nationals of mostly Muslim nations. Trump eventually prevailed in the Supreme Court, but Barr is not a gracious winner. There should have been no case at all, he argues. Judges are out of bounds in even thinking of measuring executive claims against the statutes executive officials seek to employ: “Courts’ indulgence of such claims, even if they are ultimately rejected, represents a serious intrusion on the president’s constitutional prerogatives.”
Let’s assemble the picture Barr claims the Framers drew. At its center is one individual, the president. Congress cannot call a president to account by effective oversight, nor can it require a president’s subordinates to explain their decisions. The public must have no statutory right to examine executive documents—even under a statute that, like the Freedom of Information Act, provides exemptions for many categories of internal documents. The courts cannot step in when the president uses his authority to circumvent or negate the constitutional authority of Congress. And the courts cannot examine whether his actions comport with statutes—statutes he is bound by oath to “faithfully execute.”
What this means, in practical terms, is that the president not accountable to anyone at all. There are not three co-equal branches; there is a president who is the source of authority and two subsidiary agencies, called “Congress” and “the courts,” which exist to facilitate presidential decisions. The president is not above the law; the president is the law.
This vision is a recent invention, a version of the so-called unitary-executive theory. Unitary theorists seize on the anodyne notion that in the U.S. government, voters elect only the president and vice president in the executive branch (unlike in many states, where the attorney general, the secretary of state, and various officials such as the land commissioner are elected as well). From that simple fact, two generations of able minds and agile pens have spun the fable that the Framers intended a president to be the kind of dictator Barr describes.