A history of Republican power grabs

Neil Kinkopf in Legal Affairs:

IN 1989, ASSISTANT ATTORNEY GENERAL WILLIAM BARR issued an extraordinary, and evidently unsolicited, legal opinion to all agencies of the federal government. Barr headed the prestigious Office of Legal Counsel, which advises the president and executive branch on constitutional issues, and his memo read like a Top Ten list of Congress's alleged meddling in the president's business. "Attempts to Restrict the President's Foreign Affairs Powers" was No. 9. "Micromanagement of the Executive Branch" was No. 4. Leading the list was "Interference with President's Appointment Power." "Only by consistently and forcefully resisting such congressional incursions," the memo warned, "can Executive Branch prerogatives be preserved."

Never before had the Office of Legal Counsel, known as the OLC, publicly articulated a policy of resisting Congress. The Barr memo did so with belligerence, staking out an expansive view of presidential power while asserting positions that contradicted recent Supreme Court precedent. Rather than fade away as ill-conceived and legally dubious, however, the memo's ideas persisted and evolved within the Republican Party and conservative legal circles like the Federalist Society. They emerged last year in the form of the Bush Administration's memo that asserted the president's power to authorize torture.

Bridging a 15-year gap, the Barr memo provides the theoretical and strategic foundations for the torture memo. It supports the Bush Administration's position that the American rule of law gives the president expansive power, a view that, in stark terms, means the president may order the use of torture even though a statute specifically outlaws the practice. As President Richard Nixon famously claimed, "If the President does it, that means it is not illegal." ...