Bill Barr and the “Unitary Executive Theory”


Martin Jay

  In a widely discussed essay in the January 15, 2020 issue of The New York Review of Books, the political theorist Tamsin Shaw provocatively dubbed William Barr, then finishing his initial year as Trump’s second Attorney General, “the Carl Schmitt of our times.”1 Alarmed by Barr’s Barbara K. Olson Memorial Lecture at the Federalist Society on November 15, 2019, Shaw thought he recognized the same reasoning that Schmitt, the Nazi “crown jurist,” had applied to justify the absolute power of a sovereign with the unconstrained right to decide in a state of emergency. According to Shaw, Barr believed that “the president, when acting, or claiming to act, in the interests of national security, should be allowed unlimited scope for decision-making.” Demanding rapid and often secret action, such decisions, Barr had told his audience, “cannot be directed by a pre-existing legal regime.” The implication Shaw drew from these remarks was that Barr placed the president above the law. Barr’s “anti-legal” thinking was also Schmittian in its reliance on the Manichean opposition between friend and foe, in which the existential threat of an “internal enemy” was magnified to justify the state of emergency in which sovereign decision can escape legal constraints. “William Barr, his henchmen, and his Federalist Society supporters,” Shaw dramatically concluded, “represent a powerful threat to the fundamental values of liberal democracy.”
  Fast forward almost three years and Bill Barr, having balked at Trump’s Big Lie about a stolen election and provided damning testimony to the House’s Select Committee to Investigate the January 6th Attack on the United States Capitol, writes a piece on November 21, 2022 entitled “Trump Will Burn Down the GOP: Time for New Leadership.”2 In it, he claims that although initially repelled by Trump’s self-centered, pugnacious lack of self-control and “juvenile, bombastic, and petulant style,” he decided to support him anyway after he won the party’s nomination. The Trump whose administration he later joined accomplished many things, at least in terms of traditional conservative goals, and countered “the sharp leftward lurch of the Democratic party.” But he was undone by his disruptive, churlish personality and “wrecking-ball” politics, which failed to grow his support beyond his most ideologically committed base. And so it was now time to look elsewhere for leadership of the GOP.
  However interpretable in the familiar terms of rats leaving sinking ships, Barr’s repudiation of Trump also suggests in hindsight that Shaw’s comparison needs to be qualified. There are, in fact, significant differences between the two jurists he neglected to acknowledge.3 Schmitt’s definition of sovereignty as the power to decide in a state of emergency did not, after all, confine that power to a circumscribed branch of government, but was extended to include political power as a whole. That is, there was no distinction in his version of what he called “the political” between the executive and the legislature, let alone the right of an independent judiciary to rule on the constitutionality of their decisions. In this sense, Schmitt earned the right to be called a genuine totalitarian. He was enthusiastic about the Nazis’ “Gleichschaltung” (coordination) of all independent institutions, and supported creation of a “Führerstaat” that would dispense with any codification of laws that might put limits on the leader’s absolute power.
  Barr, in contrast, has never contested the Constitution’s balance of powers or argued for absolute sovereignty residing in a single leader. His claim that the President can act without legal constraint in certain cases was grounded less in Schmittian decisionism, which unapologetically led to the defense of dictatorship, than in terms of what has come to be called the “unitary executive theory.”4 Rather than a brief for absolute political power, the theory focuses only on one branch of government. It is based on a strict interpretation of Article 2, Section I of the Constitution, which reads “the executive Power [of the United States] shall be vested in a President of the United States of America.” The passage clearly states that the embodiment of executive power in the federal government is singular, rather than plural or collegial.5 Although forty-three American states may “unbundle” their executive branch by directly electing their Attorneys General and other officials rather than making them gubernatorial appointees, the federal Constitution mandates a sole President with the power to select for Senate approval other Executive Branch officials. The Founders accepted the reasoning of Pennsylvania’s James Wilson, who stressed the greater accountability, decisiveness, and responsibility that would come with consolidating the position, and swallowed their fears of reinstating a tyrannical monarchy in all but name.
  As to be expected, the Article has enough wiggle room to have generated a series of Supreme Court decisions over the years clarifying the precise extent of the Executive’s powers.6 One of the perennial issues is the extent to which administrative agencies like the Federal Trade Commission or Consumer Financial Protection Bureau are semi-autonomous and immune from political interference on the part of the President. The principle is tested, for example, when a President chooses to remove an agency head, whose appointment had been ratified by Congress. In addition to legal cases, there are also historical precedents that are routinely mobilized to justify or contest the proper extent of Executive power.7
  The complex arguments for either a strong or a weak version of the “unitary executive theory” have occupied constitutional experts for a very long time, but until recently have not spilled over into the larger public realm. Although alarm over what Arthur Schlesinger Jr., had called “the imperial presidency” in a book with that title in 1975 was already in the air, it was not conflated with comparable unease over “the unitary executive theory” until the administration of George W. Bush, following the increase in governmental powers justified by 9/11.8 Vice President Dick Cheney in particular came to be seen as a leading advocate of a maximalist version of the theory, and was closely identified with it in the 2018 movie Vice, along with his lawyer John Addington, John Yoo of the Attorney General’s Office of Legal Counsel, and Justice Anthony Scalia. In an atmosphere of suspicion over the federal government’s self-aggrandizement, it was not surprising that Tamsin Shaw could conflate belief in a strong “unitary executive theory” with an all-powerful Schmittian sovereign with no checks on this discretionary power.
  How does Bill Barr fit into this narrative? In his November, 2019 speech to the Federalist Society, Barr, in fact, explicitly invokes the theory. But he does so only to mock it as a bogeyman of the Left:

One of the more amusing aspects of modern progressive polemic is their breathless attacks on the “unitary executive theory.” 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. 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.9

In the video of his speech, you can see Barr pause after citing the theory to wave his arms histrionically in the air and make a scary noise, and then join in the general laughter that followed.
  But despite his attempt to evade being identified by the label, Barr has long been called out by his critics as a true believer in its substance, and not without reason.10 Barr’s advocacy of a strong version of the theory is sometimes traced back to his enthusiasm for Justice Scalia’s lone dissent against the Court’s ruling for the constitutionality of an Independent Counsel in Morrison v. Olson (1988), a dissent which gained a cult following on the right. But it seems to have been hard-wired in his political philosophy from very early on.11 It is instructive to see how his embrace of the theory led to Barr’s becoming Trump’s second Attorney General, after the insufficiently compliant Jeff Sessions was sacked immediately after the 2018 midterms. In June, 2018, Barr had sent an unsolicited nineteen-page memorandum to Deputy Attorney General Rod Rosenstein, slamming Robert Mueller’s investigation into Russian interference in the 2016 election.12 Insisting that the President should not be interrogated by Mueller for an obstruction of justice, Barr zeroed in on the possibility that Trump would be condemned for firing the director of the FBI, James Comey. In so doing, he was implicitly espousing the strong version of the “unitary executive theory” that was perhaps last seen in its raw form when Robert Bork tried to clean up the mess after Nixon’s “Saturday Night Massacre.”
  Trump was clearly impressed enough by his reasoning to persuade Barr, after some apparent hesitation, to return for his second term as Attorney General, and he was sworn in on February 14, 2019. The President’s faith was not misplaced, as shown by Barr’s notorious role in blunting the effects of the Mueller investigation. Barr’s speech to the Federalist Society already indicated the path he would follow. In it, he voices Trump’s grievance against the putative erosion of Presidential power, warning that “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.” He even complains about “the Senate’s unprecedented abuse of the advice-and-consent process,” which was “never intended to allow the Senate to systematically oppose and draw out the approval process for every appointee so as to prevent the President from building a functional government.” Conveniently ignoring a sterling example of that very abuse committed when Merrick Garland’s nomination to the Supreme Court by President Obama was never considered by the Republican-controlled Senate, Barr nonetheless left no doubt that he would defend the expansion of presidential prerogatives to the maximum by the current occupant of the office.13
  Because Barr joined Bork, Cheney, Scalia, and Yoo in supporting the “unitary executive theory,” it is conventionally labeled conservative, even authoritarian in nature. Carried to an extreme, it may even seem tantamount to a Schmittian notion of undivided, sovereign power, as Shaw argues in the case of Barr. But a closer examination of earlier American history and the assumptions underlying the constitutional article itself may suggest that things are not that simple.14 In what follows, I hope to demonstrate that at times it can and has been mobilized for more progressive purposes.
  To tackle this issue requires realizing that proponents of the “unitary executive theory” are actually fighting a two-front war. The first is a battle with other branches of government over the exclusive prerogatives accorded to the President as protector of national security, which tend to be expanded in crises like 9/11 and the open-ended “war on terrorism” that followed. In his Federalist Society speech, Barr argues in words that encouraged Shaw’s comparison with Schmitt, that the Constitution grants certain “sovereign functions” to the president, such as the conduct of foreign relations and the prosecution of war – which by their very nature cannot be directed by a pre-existing legal regime but rather demand speed, secrecy, unity of purpose, and prudent judgment to meet contingent circumstances. They agreed that – due to the very nature of the activities involved, and the kind of decision-making they require – the Constitution generally vested authority over these spheres in the Executive.
  Although acknowledging a few exceptions, such as the Senate’s role in ratifying treaties, Barr argues that the Executive is not responsible to Congress, let alone the courts, in pursuing its duties. No meaningful checks and balances when it comes to national security, no constraints of a “pre-existing legal regime.”
  So much for the Constitution’s vesting in Congress of the sole right to “declare war” granted in Article 1, Section 8. So much for observing signed international agreements, like the Geneva Conventions. Here it is easy to see why “the unitary executive theory” threatens to spill over into a full-fledged Schmittian decisionism, at least when it comes to the conduct of war against enemies, foreign and domestic. Perhaps the best one can say is that Barr is merely registering the realities of an age in which nuclear war would necessitate the most momentous of decisions made without any congressional consultation, revealing what Elaine Scarry calls a “thermonuclear monarchy” unchecked by any democratic deliberation.15 Despite a few procedural safeguards, there is ultimately only one finger on the proverbial button when nuclear chips are down.
  Short of this apocalyptic scenario, there are, however, other issues raised by the Constitution’s designating the President “commander-in-chief” of the military, which will help us appreciate the theory’s ambiguous implications. These bring us to the second front in which the battle over the “unitary executive theory” is waged. If the first concerns the balance of inter-branch power and the prerogatives of the President in states of emergency, the second involves the extent to which all the internal powers of the executive can be bundled into a single office. When the Pendleton Civil Service Reform Act of 1883 ended the old spoils system of political patronage and instituted a professional bureaucracy protected from political interference, limits were put on the depth of presidential power, which now reached no lower than the heads of agencies. From the beginning of his presidency, Trump bridled at these restrictions, seeking to replace career civil servants with personal loyalists.16 His efforts culminated in Executive Order 13957 in October, 2020, which made an exception to the neutrality of the civil service for policy-making positions, broadly conceived. Here “unitary executive theory” showed its authoritarian face, and when Biden came to power, he quickly rescinded Trump’s executive order.
  A comparable threat appeared in Trump’s relations with the armed forces. Although dependent on Congress for its funding, the military is formally subordinate to the Department of Defense, which is part of the Executive branch and under presidential control. But when Trump infamously talked of “my generals” or “my military,” he not only offended the members of the armed forces who believed they were serving the nation at large, but also invited the reproach that he was “politicizing” the military, which was supposed to be immunized against it. By inducing General Mark A. Milley, the Chairman of the Joint Chiefs of Staff, to walk with him in his battle fatigues across Lafayette Park for a photo op during the protests over the police murder of George Floyd, he was tacitly asserting his right to use the military to fight domestic as well as foreign foes. As it happened, Milley, who quickly regretted his mistake and later publically apologized for it, walked alongside Bill Barr, who had been instrumental in urging the police to clear the park.17 When former Defense Secretary, General James Mattis reacted with anger to the President’s involvement of the military, Barr claimed “that much of the criticism was unwarranted and that Mattis’ rebuke was ‘borne of ignorance of the facts.’” Whatever the “facts” of this miserable episode, it is not hard to see why it might alarm those who fear the authoritarian potential in a strong version of the “unitary executive theory.”
  But looked at more carefully, the theory’s political implications may not appear as straightforward as they do when the issue is undercutting the checks and balances of the system or suspending the rule of law in the name of national security. For at least as far back as Roosevelt’s New Deal, the excessive autonomy of agencies from presidential supervision has also distressed progressives. In 1937, FDR created a Committee on Administrative Management chaired by Louis Brownlaw to address the problem. It concluded that certain agencies had become almost a “fourth branch of government” and that it was dangerous to delegate power without accountability. According to Douglas Ginsburg and Steven Menashi, “Roosevelt wanted the authority of the executive dispersed among specialized agencies subordinate to the President, so the President would be presented with conflicting policy advice, disagreements, and options. That is precisely the circumstance in which the President can most effectively exercise his power to persuade, as the ultimate decision maker, by mediating intra-branch disputes and shaping final agreements.”18 The Brownlaw Committee led to the Reorganization Act of 1939 and helped create the Executive Office of the President.
  Even when Presidential political control over the military is concerned, the implications may not be as troubling as in the case of Trump’s ordering Milley to follow him to St. John’s Church for his clumsy Bible photo op. The threat of politicization, it is important to recognize, can come from below as well as from above. Perhaps the most dangerous moment when that happened was when Gen. Douglas MacArthur tangled with President Truman over the conduct of the Korean War.19 When Truman forced MacArthur to resign in 1951, he asserted political control of the military and nipped in the bud the possibility of a usurpation of power by an ambitious military hero. Or to look at it from the point of view of “unitary executive theory,” he insisted that the President was the sole representative of Executive power and the military must accept his will. Here potential “politicization” of the military from below was thwarted by an assertion of the legitimate authority of the President to dismiss an enormously popular, but self-aggrandizing general, who had sought to undermine the singular, unshared nature of the federal executive. In the case of Trump and Milley, the assertion of presidential prerogative might well invite condemnation, but in that of Truman and MacArthur its potential to do good was also revealed.
  Similar ambiguities have characterized the relationship between the President and other relatively autonomous institutions and agencies in the Executive branch, such as the FBI. Among Trump’s most controversial actions was his dismissal of James Comey as its director, which many took as a reaction to Comey’s investigation of alleged Russian interference in the 2016 election. Here it seemed that a “unitary executive theory” was used to justify the short-circuiting of a legitimate investigation by an arm of the semi-autonomous Department of Justice. But if we go back to an earlier era of the FBI, its alleged immunity from presidential control looks far less defensible. When J. Edgar Hoover was its director, the Bureau gained enough power of its own to operate without any serious presidential oversight, spying illegally on American citizens, persecuting those who opposed Hoover’s authority, and engaging in politically motivated vendettas. No President felt empowered to check his rogue operations, fearful as they were of the intelligence Hoover had gathered about them.20 Here the tacit unbundling of singular executive power, allowing an alternative center of power to flourish, produced a nefarious outcome.
  The ambiguities of the “unitary executive theory” can be further clarified if we look more closely at the accompanying “deep state” conspiracy theory so often mobilized by Barr and other defenders of Trump’s paranoid fantasies. The term “deep state” (derin devlet) was coined by the Turks to characterize an unholy alliance of elements within the intelligence services, military, and judiciary, whose agenda was ultranationalist, secularist, anti-Kurdish and anti-democratic. It became a favorite target of Islamists like Recip Tayyip Erdoğan, who used it to purge his opponents when he got into power. Not surprisingly, his strongman politics were much admired by Trump, who adopted his demonization of the “deep state” to explain everything from the investigation of Russian interference in the 2016 election to his first impeachment. Although never consistently invoked by his supporters—Steve Bannon seems to have first endorsed it and then backed off21 –it remained a powerful rhetorical tool in Trump’s self-vindicating narrative of victimization by powerful occult forces. Even when unmasking its mysterious powers through the investigation of special prosecutor John Durham into the “Russia Hoax” came to nothing, its grip remained powerful in the MAGA world. In the case of Bill Barr, in fact, it seems to have survived his departure from Trump’s inner circle.22
  Shorn of its conspiratorial aura, however, and redescribed in the more sober terms of the “unitary executive theory,” suspicion of “the deep state” can express warranted protest against a self-aggrandizing, unaccountable bureaucratic agency that thwarts the will of the President. It should be remembered that the term “deep state,” along with some of the conspiratorial anxiety accompanying it, first came to America through its adoption as a pejorative by the left. Written in the waning years of Obama’s presidency, Peter Dale Scott’s The American Deep State argued that at least since the time of John Foster Dulles a shadow government, including not only non-accountable intelligence agencies like the CIA, FBI and NSA, but also the private services to which intelligence work is often outsourced, has worked against the popularly elected government.23
  Scott, who had been sounding the tocsin since 2007, was soon chagrined to find it resonating on the right. In 2014, a disgruntled Republican congressional aide, Mike Lofgren, published The Deep State: The Fall of the Constitution and the Rise of a Shadow Government, which added Silicon Valley to the malevolent forces subverting the will of the people. He urged, in a phrase that would soon be familiar, the draining of the swamp in Washington. Although Scott later sought to recapture “the deep state” for a progressive agenda, even arguing that Trump might be an agent not only of its American version but also the Russian,24 its seizure by the right had become irreversible.
  As an ironic result, the unaccountable agencies that so troubled leftists like Scott were suddenly lionized by their former critics. The FBI and CIA, long considered centers of political reaction, were awkwardly lauded for their integrity in the face of Trump’s attempt to politicize them or ignore their advice. To be sure, Hilary Clinton may never forgive Comey’s October 28, 2016 letter to Congress revealing the existence of her problematic emails, but his subsequent quarrel with Trump made him a progressive martyr. The agency he once directed, reinforced by the role it played in raiding Mar-a-Lago, turned into a righteous instrument of justice for those yearning for Trump’s legal comeuppance. Former heads of intelligence agencies like John Brennan and Andrew McCabe became authoritative anti-Trump talking heads on CNN and MSNBC. This turnaround is neatly encapsulated in the title of David Rothkopf’s recent book, American Resistance: The Inside Story of How the Deep State Saved the Nation.25 It reinforces the narrative that the “unitary executive theory” is inherently a tool of conservative, even authoritarian rule, but at the cost of forgetting the decades of suspicion of rogue agencies that acted covertly to subvert popular sovereignty.
  Much more can be said about the struggle over the empirical validity of the idea of a “deep state” and its usage on both sides of the political divide, but what is important to emphasize is its inherent connection with the “unitary executive theory.” That is, concern over its covert power expresses suspicion about the non-accountability of bureaucratic agencies and ancillary entities that are in or adjacent to the Executive branch, but relatively independent of the control of the sole figure who is actually elected by popular mandate. Whatever one may think about any one President’s policies or the integrity of the bureaucrats who may resist them in the name of a higher good, only the former are directly dependent on the will of the voters. The cases of MacArthur and Hoover are reminders that the exercise of Presidential discretion does not always mean the abuse of power or exemplify Schmittian decisionism. Sometimes it can be exercised to thwart attempts to unbundle the singular Executive mandated by the Constitution, and empower unaccountable agencies outside of its control.
  How does this all help explain the conversion of Bill Barr from an ardent enabler of Trump and the unconstrained promoter of unified executive power in his 2019 Federalist Society speech to the author in 2022 of “Trump will Burn Down the GOP”? His dismissal of Trump’s “rigged election” and resignation as Attorney General in December, 2020, might be interpreted as signaling his realization that the “unitary executive theory” does have limits, after all. When he learned that Trump had contemplated replacing Jeffrey Rosen, Barr’s replacement as Acting Attorney General, with the more compliant Jeffrey Clark, Barr scorned the move.26 This was not, in fact, the first time that Barr withdrew his full-throated defense of the “unitary executive theory.” In 1998, he signed a letter to The Wall Street Journal with three other previous Attorneys General that conceded, despite their qualms about the Independent Counsel Act, it was now settled law (by the aforementioned Morrison v. Olsen case against which Scalia had dissented).27 And therefore, they concluded, Kenneth Starr should be allowed to do his job investigating Bill Clinton unimpeded by protests from the President and his defenders.
  But before too hastily characterizing Barr’s apostasy from Trump’s cult as a principled abandonment of the “unitary executive theory,” a closer look at his November, 2022 call for new leadership is warranted.28 In many ways, Barr’s recent article reeks of bad faith. Nowhere does he confront his own role in enabling Trump’s reckless behavior and his cynical indulgence of the loathsome personality of the narcissist-in-chief. Nowhere does he accept responsibility for accelerating the internal rot of the political party he now hopes to restore to the warm glow of Reagan’s morning in America. Nowhere does he reflect on the damage done by his short-circuiting the Mueller investigation of Trump’s Russian connection. He may have been a “never Trumper” before the 2016 election and fashion himself a born-again one after the January 6th debacle, but in the interim, he was as eager as anyone to crash the wrecking ball into the obstacles that might thwart the will of a strong executive.
  Unlike his Federalist Society or Notre Dame Law School talks, his recent essay has no theoretical heft. All it does is blame Trump’s failures on his personal flaws and argues from a purely political point of view that his antics will diminish Republican chances to regain the White House in 2024. It implicitly leaves Barr’s support for a strong executive standing, only not for the particular President he mistakenly thought could fill the position effectively. In other words, like the old notion of “the king’s two bodies,” famously examined by Ernst Kantorowicz in its medieval guise,29 Barr tacitly distinguishes between an ideal unitary executive and an actual one. When the latter effectively carries out conservative policies, his reprehensible personal failings can be overlooked. But when his character flaws undermine his efficacy, this particular chief executive should be abandoned. But the ideal of a strong, unified, unconstrained executive remains.
  The real test of Barr’s commitment to a strong unitary executive will come if he defends it in the hands of a president whose policies he abhors, and whose use of it in the face of obstruction from a reactionary court and recalcitrant legislature may be necessary to promote those policies. Our collective breath should not be held, however, for this example of principled consistency to appear. His selective enthusiasm for its application is already manifested in his autobiography, where he claims “the Trump administrations use of executive prerogative looks a bit tame when you compare it to Barack Obama’s aggressive use of his presidential pen” and then blasts the DACA program for allowing him “simply to ignore broad swathes of immigration law.”30
  What Barr’s situational embrace of the “unitary executive theory” does show instead is that rather than having inherent political implications, the theory should not be confused with Schmitt’s defense of a dictatorial sovereign and can in fact serve progressive as well as conservative ends. As Biden ramps up his signing statements, maneuvers to bypass the Supreme Court’s attempt to turn back the clock, and blunts congressional efforts to investigate every misstep of his wayward son Hunter, amnesia about the misdeeds of the “deep state” may no longer be sufficient as a bulwark of democracy. For this round of the political carousel, maybe a stronger, united chief executive may be what it actually needs instead.


21. Martin Pengelly, Stephen Miller Blamed Impeachment on the Deep State—Bannon Says that’s for ‘nut cases.’ The Guardian, October 4, 2019:

22. Charlie Kirk, Bill Barr Makes Clear: Yes, There is a ‘Deep State’ and He is not a Fan of It. WDKT: The Patriot, November 20, 2022: Ironically, Barr himself was accused of being a deep state operative by Roger Stone after his apostasy from the Trump cult. See Jamie Ross, Roger Stone, Who had his Ass Saved by Barr, Turns on ‘Deep State’ Attorney General, Daily Beast, December 2, 2020;

23. Peter Dale Scott, The American Deep State: Wall Street, Big Oil, and the Attack on U.S. Democracy (Lanham, Md., 2014).

24. Peter Dale Scott, Donald J. Trump and the Deep State, Who, Why, What, parts I and 2, 2/16/2017 and 2/17, 2017: and

25. David Rothkopf, American Resistance: The Inside Story of How the Deep State Saved the Nation. (New York, 2022).

26. Barr, One Damn Thing After Another, p. 557.

27. The letter was read into the Congressional Record by Rep. Gerald Solomon of New York on March 17, 1998: On several occasions when he was the first Bush’s AG—one having to do with the President’s right to issue a line-veto of legislation, the other the firing of an independent counsel—he ultimately advised against an aggressive assertion of executive prerogative. See David Shortell, What Barr’s work under Bush 41 tells us about how he’ll handle his new job, CNN Politics, March 7, 2019;

28. The essay was a condensed version of the final pages of Barr’s autobiography, which includes many of the same passages. See One Damn Thing After Another, pp. 558-565.

29. Ernst H. Kantorowicz, The King’s Two Bodies: A Study in Medieval Political Theology (Princeton, 1957).

30. Barr, One Damn Thing After Another, p. 176.
  3. One would be their different attitudes towards the relationship between their Catholic faith and politics, which Shaw intimates was similar. It is hard to attribute to Schmitt the faith in natural law that Barr defended in his controversial speech to the Notre Dame Law School on October 19, 2019 on “religious freedom.” For Schmitt, the only tenet of natural law is self-preservation, which is not the traditional version Barr took from Catholic theology.
  4. For overviews of its historical development, see Mark Tushnet, A Political Perspective on the Theory of the Unitary Executive, Journal of Constitutional Law, 12, 2 (2010); and Cass R. Sunstein and Adrian Vermeule, The Unitary Executive: Past, Present and Future, The Supreme Court Review, 83 (2020).
  5. For examples of plural embodiments, see David Altman, Checking Executive Personalism: Collegial Governments and the Level of Democracy, Swiss Political Science Review, 26, 3 (2020).
  6. The maximalist interpretation is often located in the Myers v. United States decision (1926) and the minimalist in the Humphrey’s Executor v. Federal Trade Commission (1935), with attempts to find a balance still exercising the Supreme Court as recently as Seila Law LLC v. Consumer Financial Protection Bureau (2020).
  7. See Vicki Divoll, Eight Things I Hate about the Unitary Executive Theory, Vermont Law Review, 38:147 (2103). She contends that alleged historical precedents of Executive action play a greater role than explicit legal decisions.
  8. See Tom Head, The Imperial Presidency and the Unitary Executive Theory, ThoughtCo, September 17, 2019:
  9. William Barr, Attorney General William P. Barr Delivers the 19th Annual Barbara K. Olson Memorial Lecture at the Federalist Society’s 2019 National Lawyers Convention, The United States Department of Justice:
  10. See, for example, Caroline Frederickson, No Lap Dog, Just Defending his Idea of the Top Dog, Just Security, July 6, 2020;; Mattathias Schwartz, William Barr’s State of Emergency, New York Times Magazine, November 18, 2020:
  11. In his autobiography, One Damn Thing After Another: Memoirs of an Attorney General (New York, 2022), he recalls espousing it as early as his 1976 clerkship under Judge Malcolm Wilkey (p. 40).
  13. Nowhere in his almost 600-page autobiography, One Damn Thing After Another, does Barr mention the Garland nomination to the Court.
  14. Tushnet suggestively distinguishes between Republican and Democratic strategies for consolidating Presidential control, only the first of which is the unitary executive theory. He calls the second presidential administration: The theory of the unitary executive asserts that the White House is to control the bureaucracy. In presidential administration, in contrast, the White House displaces the bureaucracy. Rather than controlling the processes of policy-making as they occur outside the White House, presidential administration brings policy-making over exactly the same domains into the White House. A Political Perspective on the Unitary Executive Theory, pp. 325-326. Although the means may differ, it seems to me the goal of consolidating presidential power is shared.
      Ironically, some more traditional conservatives were themselves alarmed by Barr’s apparent placement of the President above the law. See Aris Folley, Barr Criticized by Conservative Lawyers for Stance on Executive Power, The Hill, November 29, 2019;
  15. Elaine Scarry, Thermonuclear Monarchy: Choosing Between Democracy and Doom (New York, 2014). Legislation was, in fact, introduced in the House in 2017 and 2019 to restrict the first use of nuclear weapons, but died before becoming law.
  16. See Michael Lewis, The Fifth Risk (New York, 2018).
  17. In his autobiography, Barr says he merely endorsed an already agreed upon plan rather than ordering it and denied that Trump’s aim in walking across the park was a photo op. He does try to distance himself from the President’s gimmick of holding up a bible in front of St. John’s church. His rebuke to Mattis goes unmentioned. See One Damn Thing After Another, pp. 500-501.
  18. See Douglas A. Ginsburg and Steven Menashi, Nondelegation and the Unitary Executive, Journal of Constitutional Law, 12, 2 (2010), p. 268.
  19. See H.W. Brands, The General vs. The President: MacArthur and Truman at the Brink of Nuclear War (New York, 2016).
  20. For an account of Nixon’s failure of nerve in trying to sack Hoover, see Margaret Talbot, J. Edgar Hoover, Public Enemy No. 1, The New Yorker, November 21, 2022. In One Damn Thing After Another, Barr condemns Comey’s arrogance and says it is an attitude that results in the likes of J. Edgar Hoover and the mind-set that one is a law unto himself. (p. 192).
  21. Martin Pengelly, Stephen Miller Blamed Impeachment on the Deep State—Bannon Says that’s for ‘nut cases.’ The Guardian, October 4, 2019:
  22. Charlie Kirk, Bill Barr Makes Clear: Yes, There is a ‘Deep State’ and He is not a Fan of It. WDKT: The Patriot, November 20, 2022: Ironically, Barr himself was accused of being a deep state operative by Roger Stone after his apostasy from the Trump cult. See Jamie Ross, Roger Stone, Who had his Ass Saved by Barr, Turns on ‘Deep State’ Attorney General, Daily Beast, December 2, 2020;
  23. Peter Dale Scott, The American Deep State: Wall Street, Big Oil, and the Attack on U.S. Democracy (Lanham, Md., 2014). They were connected, Scott argued, to a larger network of sinister international interests, especially banking and oil, that work to undermine democracies.
  24. Peter Dale Scott, Donald J. Trump and the Deep State, Who, Why, What, parts I and 2, 2/16/2017 and 2/17, 2017: and
  25. David Rothkopf, American Resistance: The Inside Story of How the Deep State Saved the Nation. (New York, 2022).
  26. Barr, One Damn Thing After Another, p. 557.
  27. The letter was read into the Congressional Record by Rep. Gerald Solomon of New York on March 17, 1998: On several occasions when he was the first Bush’s AG—one having to do with the President’s right to issue a line-veto of legislation, the other the firing of an independent counsel—he ultimately advised against an aggressive assertion of executive prerogative. See David Shortell, What Barr’s work under Bush 41 tells us about how he’ll handle his new job, CNN Politics, March 7, 2019;
  28. The essay was a condensed version of the final pages of Barr’s autobiography, which includes many of the same passages. See One Damn Thing After Another, pp. 558-565.
  29. Ernst H. Kantorowicz, The King’s Two Bodies: A Study in Medieval Political Theology (Princeton, 1957).
  30. Barr, One Damn Thing After Another, p. 176.