One of the great ironies of modern American conservatism is that the party that claims to champion “limited government” is really in a constant push to expand the scope and power of the executive branch.
It amounts to the political equivalent of F. Scott Fitzgerald’s famous observation that “the test of a first-rate intelligence is the ability to hold two opposed ideas in mind at the same time and still retain the ability to function.”
The concept – expanding the power of the presidency, while seeking to limit power everywhere else in government – may not equate to “first-rate intelligence,” but it certainly has become the mantra of a host of Republicans dating back to at least the presidency of Richard Nixon.
Nixon, of course, made the laughable claim that “when the president does it, that means it’s not illegal.” The same logic was applied when then-Vice President Dick Cheney adamantly refused to disclose whom he was consulting with in crafting an energy policy during the George W. Bush administration. Even more importantly Cheney invoked the concept of an ever-expanding power of the executive when he aggressively defended a president’s power to conduct domestic surveillance without a warrant.
Remembering what he saw as a diminishment of presidential power during the post-Watergate period and during his time as chief of staff to Gerald Ford, Cheney questioned whether Congress had erred in creating the War Powers Act, a 1973 response to presidential overreach in Southeast Asia. The law was “an infringement upon the authority of the president.” Cheney said, and may be “unconstitutional.” Never mind that the Constitution grants the exclusive power to declare war to Congress.
The effort to expand and then defend executive power has found a new conservative champion in Attorney General Bill Barr. “I don’t know anyone that has a more robust view of inherent presidential authority than Bill Barr,” says Walter Dellinger, who, like Barr, once ran the Office of Legal Counsel at the Justice Department. “There is nobody who is to his right on this issue.”
After 40 years of diligent work in and out of government by conservatives like Ronald Reagan’s Attorney General Edwin Meese, the late Supreme Court Justice Antonin Scalia and one-time Solicitor General Robert Bork, among others, Barr’s views of presidential power are widely shared by most on the political right.
Yet, these are many of the same people who decried Barack Obama’s widespread and often questionable use of “executive authority” on all manner of policy where he could not convince Congress to act. Conservatives still bemoan, and correctly so, the expansion of presidential power when Franklin Roosevelt pioneered the “imperial presidency” in order to respond to the Great Depression. Yet, most conservatives acquiesced – the entire Idaho delegation included – with hardly a whimper when Donald Trump declared a “national emergency” and unconstitutionally appropriated money to build his border wall.
Which brings us to the news of the week. A Republican congressman from Michigan, once a Tea Party darling, defied his party and came to the conclusion that anyone who has dispassionately read the Mueller report would reach. In fact, more than 800 former U.S. Justice Department officials have come to the same conclusion. The president did attempt to obstruct justice to derail the investigation into Russian election meddling and was clearly open to “collusion” even as the special counsel determined the threshold of proving a conspiracy was difficult to meet. Crossing the threshold, of course, was made more difficult, even impossible, by Trump’s own refusal to be interviewed and his active efforts to prevent others from talking or telling the truth.
“They say there were no underlying crimes,” Republican Congressman Justin Amash said in a Tweet that will surely find its way into the history books. “In fact, there were many crimes revealed by the investigation, some of which were charged, and some of which were not but are nonetheless described in Mueller’s report.”
Amash, it must be remembered, was described in March of this year, as “probably one of the most, if not the most consistent and honorable members of Congress that I met in the eight years I was there. He always outlined what he believes in, why he believes in the things that he does and why he makes the decisions that he makes.”
The former Republican congressman who said that was Raul Labrador.
The president of course immediately denounced Amash, the House Freedom Caucus rumbled about how misguided he is and the minority leader made noises about his party loyalty.
Meanwhile, a federal judge ruled this week that the chief magistrate is not above the law even as he continues to “fight all the subpoenas,” refused to allow even former White House staffers to testify before Congress and, predictably, fights a legitimate request by a congressional committee to review his tax returns, which he promised repeatedly before the election to release. A man not hiding something doesn’t work so hard to hide something.
The attorney general, now largely serving as the president’s personal lawyer rather than the nation’s top law enforcement official, seeks to limit the legitimate investigation of a president plausibly implicated in real crimes. But the argument is a chimera, a constitutional illusion that actually amounts to yet more obstruction of justice.
If you’re a Trump partisan try to put those sentiments aside for a moment and pull out your copy of the Constitution. Ask yourself just two questions. If the name attached to the facts so obvious to Rep. Amash were Obama or Clinton would you see all of this differently? Would the assertions of presidential authority, the idea that the president isn’t answerable to Congress or really to anyone, would this wholesale resistance to transparency be as palatable then?
James Madison, that fussy old Founder, wrote about this in Federalist 51: “If [people] were angels, no government would be necessary. If angels were to govern [people], neither external nor internal controls on government would be necessary.” The Constitution wasn’t written for angels. It was written to constrain the ugly impulses of men and presidents.
(This piece originally appeared in the May 24, 2019 edition of the Lewiston, Idaho Tribune.)