Friday, December 7, 2018
If you want to know what William P. Barr, President Trump's nominee for Attorney General, thinks about congressional interference with executive-branch operations and the "unitary executive," check out his 1989 memo as assistant attorney general in the OLC. (Spoiler alert: He's an aggressive proponent of a unitary executive, in ways both familiar and less familiar in today's constitutional politics.)
Notably--and contrary to a trend among unitary executive advocates--he doesn't disavow Morrison v. Olson (at least not in this memo); he just says that most or all independent offices are distinguishable from the independent counsel (and therefore unconstitutional even under that case). Given the current political winds, it seems likely his position on Morrison will likely change. In any event, this doesn't necessarily say anything about his position on Special Counsel Mueller: Mueller was appointed pursuant to DOJ regs, not a congressional statute, so doesn't raise the same separation-of-powers concerns as the old independent counsel.
The memo outlines these "Common Legislative Encroachments On Executive Branch Authority":
- Interference with the President's Appointment Power, including incompatibility and ineligibility issues (e.g., appointing members of Congress to executive-branch commissions that have more than advisory roles), directing the president to appoint from an approved list of candidates, and delegations of authority to positions outside the executive branch (e.g., qui tam statutes).
- The creation of hybrid commissions that reach into executive authority.
- Attempts to constraint the president's "removal power."
- "Micromanagement of the Executive Branch," by mandating certain executive processes and bureaucratic organization.
- "Attempts to Gain Access to Sensitive Executive Branch Information."
- Legislative vetoes (even after Chadha).
- Requirements that executive officials submit legislation to Congress.
- Restrictions on the president's recess appointment power.