Read the 1986 Justice Department Report for Ed Meese “Separation of Powers: Legislative-Executive Relations”
A few days ago, I wrote a piece analyzing Attorney General Bill Barr’s Federalist Society speech on his maximalist view of executive power, which I, argued, had more to do with Ronald Reagan’s 1980s than George Washington’s 1780s. I included a cautionary quotation from an internal 1986 Justice Department manifesto on separation of powers issues commissioned by Barr’s predecessor, Ed Meese, which I had unearthed in the National Archives when I was a Boston Globe reporter and doing research for my first book, Takeover.
Several people asked me if I could share that report. I told them that while it’s possible I have a photocopy buried in my somewhere in my attic, I wasn’t sure how to easily put my hands on it. But in a coincidence, I needed to go up to the National Archives in College Park Wednesday to pickup some documents I had FOIA’d out on an unrelated matter. So while I was up there, I also took the time to ask the archivists to pull that box out of Meese’s files for me again, and I scanned the report. I am posting it here (and adding it to the short list of rare primary documents from Takeover or my other book, Power Wars) in case it may be of interest or use to specialists.
In cracking open the box — from Meese’s correspondence files with his Office of Legal Policy — I noted a marking saying that it had been reviewed and opened for public viewing in November 2006 — i.e., I had been the first person to request access to that box. I wondered if anyone else had touched those pages in the intervening 13 years.
Upon re-reading the report, I also decided that when my younger self discussed it in Takeover, I had been imprecise in two respects:
- LENGTH: My book calls it an eighty page memo. The main report and first two appendices, which contain original material with analytical value (e.g., a detailed summary of separation-of-powers fights during the Reagan years), comprise 81 pages. But there were additional appendices of diminishing interest (e.g., photocopies of several Federalist Papers). The PDF I scanned and posted (click here for downloadable version on DocumentCloud) is the whole thing.
- SCOPE OF ITS DISCUSSION OF THE UNITARY EXECUTIVE THEORY: By using this memo as a narrative jumping off point to explicate the Reaganites’ executive power theories, my book may create the impression that this particular report lays out a detailed defense of one of them, the Unitary Executive. While the report dove deep into their related theory of how the Framers wanted the separation of powers to work, its engagement with Unitary Executive issues is briefer because, it says, the status of independent agencies was “already under thorough consideration” elsewhere within the department.