TrumpCast on Barr and the Imaginary Unitary Executive

I talked to Virginia Heffernan on her podcast TrumpCast yesterday, posted today: “Worst AG, Barr None.”

Link here.

Those who think Barr is an evil genius are half right. He’s not only the worst Attorney General in American history. He’s not even a good lawyer or a competent fixer. He just pretends to be one on TV. Virginia talked about his series of legal and historical errors, from the likelihood his efforts to help Flynn will backfire… to his SDNY firing fiasco… to his ahistoric myth of the Unitary Executive.

The papers I refer to are posted here:

The Indecisions of 1789: Strategic Ambiguity and the Imaginary Unitary Executive (Part I)
The Decisions of 1789 Were Non-Unitary: Removal by Judiciary and the Imaginary Unitary Executive (Part II)
We ran out of time, but I noted the inconsistency of the DACA dissenters on Slate’s TrumpCast (linked below). Thomas, joined by Alito and Gorsuch have subscribed to the unitary theory in cases like Free Enterprise, and appear poised to embrace the theory again in Seila Law/Trump subpoenas, but did not defer to President Obama’s discretion to create DACA. For what it’s worth, I think Thomas’s opinion is generally right on DACA and administrative law, but the conservative Justices’ inconsistent interpretation of presidential power depending on which party holds the White House is rather remarkable.

Author: Jed Shugerman

Jed Handelsman Shugerman is a Professor at Fordham Law School. He received his B.A., J.D., and Ph.D. (History) from Yale. His book, The People’s Courts (Harvard 2012), traces the rise of judicial elections, judicial review, and the influence of money and parties in American courts. It is based on his dissertation that won the 2009 ASLH’s Cromwell Prize. He is co-author of amicus briefs on the history of presidential power, the Emoluments Clauses, the Appointments Clause, the First Amendment rights of elected judges, and the due process problems of elected judges in death penalty cases. He is currently working on two books on the history of executive power and prosecution in America. The first is tentatively titled “A Faithful President: The Founders v. the Unitary Executive,” questioning the textual and historical evidence for the theory of unchecked and unbalanced presidential power. This book draws on his articles “Vesting” (Stanford Law Review forthcoming 2022), “Removal of Context” (Yale Journal of Law & the Humanities 2022), a co-authored “Faithful Execution and Article II” (Harvard Law Review 2019 with Andrew Kent and Ethan Leib), “The Indecisions of 1789” (forthcoming Penn. Law Review), and “The Creation of the Department of Justice,” (Stanford Law Review 2014). The second book project is “The Rise of the Prosecutor Politicians: Race, War, and Mass Incarceration,” focusing on California Governor Earl Warren, his presidential running mate Thomas Dewey, the Kennedys, World War II and the Cold War, the war on crime, the growth of prosecutorial power, and its emergence as a stepping stone to electoral power for ambitious politicians in the mid-twentieth century.

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