At Law & Liberty, John McGinnis: Checks and Balances Needs More Balance. From the introduction:
In our polarized times, we need nuance, context, and careful analysis, not simple denunciation of legal claims, including those made by government officials. One might have expected such dissection to come from the group calling itself Checks and Balances, composed largely of Republican and conservative lawyers disaffected by the Trump administration. Their very name conjures moderation, and a dissenting Republican, conservative perspective on the administration’s excesses promises to be a very valuable corrective, particularly as distinct from more predictable left-liberal revulsion.
If their analysis of William Barr’s speech to the Federalist Society is any indication, however, they are at risk of providing more angry shouts in the blogosphere. Their response to a speech that took forty-five minutes to deliver is two short conclusory paragraphs, in which they accuse Barr of autocratic vision of the presidency with no basis in history. Moreover, their attack on Barr misses nuances in Barr’s own speech and does not try to discriminate between the many different claims he made about the nature of executive power—some of which are well supported by history and some of which are not. Sophisticated critics need to be discriminating. Nor do they put his claims in the context of previous Republican or even Democratic administrations.
Professor McGinnis then assesses the speech in terms of the unitary executive, substantive executive power, and court settlement of disputes between the President and Congress. It all seems right to me. It would be nice to see Checks and Balances give a substantive response.
Posted at 6:27 AM