Good Evening. Thank you all for being here. And thank you to Gene [Meyer] for your kind
introduction. It is an honor to be here this evening delivering
the 19th Annual Barbara K. Olson Memorial Lecture. I had the privilege of knowing Barbara and
had deep affection for her. I miss her brilliance and ebullient spirit. It is a privilege for me to participate in
this series, which honors her. The theme for this year’s Annual Convention
is “Originalism,” which is a fitting choice — though, dare I say, a somewhat “unoriginal”
one for the Federalist Society. I say that because the Federalist Society
has played an historic role in taking originalism “mainstream.” While other organizations have contributed
to the cause, the Federalist Society has been in the vanguard. A watershed for the cause was the decision
of the American people to send Ronald Reagan to the White House, accompanied by his close
advisor Ed Meese and a cadre of others who were firmly committed to an originalist approach
to the law. I was honored to work with Ed in the Reagan
White House and be there several weeks ago when President Trump presented him with the
Presidential Medal of Freedom. As the President aptly noted, over the course
of his career, Ed Meese has been among the Nation’s “most eloquent champions for
following the Constitution as written.” I am also proud to serve as the Attorney General
under President Trump, who has taken up that torch in his judicial appointments. That is true of his two outstanding appointments
to the Supreme Court, Justices Neil Gorsuch and Brett Kavanaugh; of the many superb court
of appeals and district court judges he has appointed, many of whom are here this week;
and of the many outstanding judicial nominees to come, many of whom are also here this week. I wanted to choose a topic for this afternoon’s
lecture that had an originalist angle. It will likely come as little surprise to
this group that I have chosen to speak about the Constitution’s approach to executive
power. I deeply admire the American Presidency as
a political and constitutional institution. I believe it is, one of the great, and remarkable
innovations in our Constitution, and has been one of the most successful features of the
Constitution in protecting the liberties of the American people. More than any other branch, it has fulfilled
the expectations of the Framers. Unfortunately, over the past several decades,
we have seen steady encroachment on Presidential authority by the other branches of government. This process I think has substantially weakened
the functioning of the Executive Branch, to the detriment of the Nation. This evening, I would like to expand a bit
on these themes. First, let me say a little about what the
Framers had in mind in establishing an independent Executive in Article II of the Constitution. The grammar school civics class version of
our Revolution is that it was a rebellion against monarchial tyranny, and that, in framing
our Constitution, one of the main preoccupations of the Founders was to keep the Executive
weak. This is misguided. By the time of the Glorious Revolution of
1689, monarchical power was effectively neutered and had begun its steady decline. Parliamentary power was well on its way to
supremacy and was effectively in the driver’s seat. By the time of the American Revolution, the
patriots well understood that their prime antagonist was an overweening Parliament. Indeed, British thinkers came to conceive
of Parliament, rather than the people, as the seat of Sovereignty. During the Revolutionary era, American thinkers
who considered inaugurating a republican form of government tended to think of the Executive
component as essentially an errand boy of a Supreme legislative branch. Often the Executive (sometimes constituted
as a multi-member council) was conceived as a creature of the Legislature, dependent on
and subservient to that body, whose sole function was carrying out the Legislative will. Under the Articles of Confederation, for example,
there was no Executive separate from Congress. Things changed by the Constitutional Convention
of 1787. To my mind, the real “miracle” in Philadelphia
that summer was the creation of a strong Executive, independent of, and coequal with, the other
two branches of government. The consensus for a strong, independent Executive
arose from the Framers’ experience in the Revolution and under the Articles of Confederation. They had seen that the War had almost been
lost and was a bumbling enterprise because of the lack of strong Executive leadership. Under the Articles of Confederation, they
had been mortified at the inability of the United States to protect itself against foreign
impositions or to be taken seriously on the international stage. They had also seen that, after the Revolution,
too many States had adopted constitutions with weak Executives overly subordinate to
the Legislatures. Where this had been the case, state governments
had proven incompetent and indeed tyrannical. From these practical experiences, the Framers
had come to appreciate that, to be successful, Republican government required the capacity
to act with energy, consistency and decisiveness. They had come to agree that those attributes
could best be provided by making the Executive power independent of the divided counsels
of the Legislative branch and vesting the Executive power in the hands of a solitary
individual, regularly elected for a limited term by the Nation as a whole. As Jefferson put it, ‘[F]or the prompt,
clear, and consistent action so necessary in an Executive, unity of person is necessary….” While there may have been some differences
among the Framers as to the precise scope of Executive power in particular areas, there
was general agreement about its nature. Just as the great separation-of-powers theorists–
Polybius, Montesquieu, Locke – had, the Framers thought of Executive power as a distinct
specie of power. To be sure, Executive power includes the responsibility
for carrying into effect the laws passed by the Legislature – that is, applying the
general rules to a particular situation. But the Framers understood that Executive
power meant more than this. It also entailed the power to handle essential
sovereign functions – such as the conduct of foreign relations and the prosecution of
war – which by their very nature cannot be directed by a pre-existing legal regime
but rather demand speed, secrecy, unity of purpose, and prudent judgment to meet contingent
circumstances. They agreed that – due to the very nature
of the activities involved, and the kind of decision-making they require – the Constitution
generally vested authority over these spheres in the Executive. For example, Jefferson, our first Secretary
of State, described the conduct of foreign relations as “Executive altogether,” subject
only to the explicit exceptions defined in the Constitution, such as the Senate’s power
to ratify Treaties. A related, and third aspect of Executive power
is the power to address exigent circumstances that demand quick action to protect the well-being
of the Nation but on which the law is either silent or inadequate – such as dealing with
a plague or natural disaster. This residual power to meet contingency is
essentially the federative power discussed by Locke in his Second Treatise. And, finally, there are the Executive’s
powers of internal management. These are the powers necessary for the President
to superintend and control the Executive function, including the powers necessary to protect
the independence of the Executive branch and the confidentiality of its internal deliberations. Some of these powers are express in the Constitution,
such as the Appointment power, and others are implicit, such as the Removal power. One of the more amusing aspects of modern
progressive polemic is their breathless attacks on the “unitary executive theory.” They portray this as some new-fangled “theory”
to justify Executive power of sweeping scope. In reality, the idea of the unitary executive
does not go so much to the breadth of Presidential power. Rather, the idea is that, whatever the Executive
powers may be, they must be exercised under the President’s supervision. This is not “new,” and it is not a “theory.” It is a description of what the Framers unquestionably
did in Article II of the Constitution. After you decide to establish an Executive
function independent of the Legislature, naturally the next question is, who will perform that
function? The Framers had two potential models. They could insinuate “checks and balances”
into the Executive branch itself by conferring Executive power on multiple individuals (a
council) thus dividing the power. Alternatively, they could vest Executive power
in a solitary individual. The Framers quite explicitly chose the latter
model because they believed that vesting Executive authority in one person would imbue the Presidency
with precisely the attributes necessary for energetic government. Even Jefferson – usually seen as less of
a hawk than Hamilton on Executive power – was insistent that Executive power be placed in
“single hands,” and he cited the America’s unitary Executive as a signal feature that
distinguished America’s success from France’s failed republican experiment. The implications of the Framers’ decision
are obvious. If Congress attempts to vest the power to
execute the law in someone beyond the control of the President, it contravenes the Framers’
clear intent to vest that power in a single person, the President. So much for this supposedly nefarious theory
of the unitary executive. We all understand that the Framers expected
that the three branches would be jostling and jousting with each other, as each threatened
to encroach on the prerogatives of the others. They thought this was not only natural, but
salutary, and they provisioned each branch with the wherewithal to fight and to defend
itself in these interbranch struggles for power. So let me turn now to how the Executive is
presently faring in these interbranch battles. I am concerned that the deck has become stacked
against the Executive. Since the mid-60s, there has been a steady
grinding down of the Executive branch’s authority, that accelerated after Watergate. More and more, the President’s ability to
act in areas in which he has discretion has become smothered by the encroachments of the
other branches. When these disputes arise, I think there are
two aspects of contemporary thought that tend to operate to the disadvantage of the Executive. The first is the notion that politics in a
free republic is all about the Legislative and Judicial branches protecting liberty by
imposing restrictions on the Executive. The premise is that the greatest danger of
government becoming oppressive arises from the prospect of Executive excess. So, there is a knee-jerk tendency to see the
Legislative and Judicial branches as the good guys protecting society from a rapacious would-be
autocrat. This prejudice is wrong-headed and atavistic. It comes out of the early English Whig view
of politics and English constitutional experience, where political evolution was precisely that. You started out with a King who holds all
the cards; he holds all the power, including Legislative and Judicial. Political evolution involved a process by
which the Legislative power gradually, over hundreds of years, reigned in the King, and
extracted and established its own powers, as well as those of the Judiciary. A watershed in this evolution was, of course,
the Glorious Revolution in 1689. But by 1787, we had the exact opposite model
in the United States. The Founders greatly admired how the British
constitution had given rise to the principles of a balanced government. But they felt that the British constitution
had achieved only an imperfect form of this model. They saw themselves as framing a more perfect
version of separation of powers and a balanced constitution. Part of their more perfect construction was
a new kind of Executive. They created an office that was already the
ideal Whig Executive. It already had built into it the limitations
that Whig doctrine aspired to. It did not have the power to tax and spend;
it was constrained by habeas corpus and by due process in enforcing the law against members
of the body politic; it was elected for a limited term of office; and it was elected
by the nation as whole. That is a remarkable democratic institution
– the only figure elected by the Nation as a whole. With the creation of the American Presidency,
the Whig’s obsessive focus on the dangers of monarchical rule lost relevance. This fundamental shift in view was reflected
in the Convention debates over the new frame of government. Their concerns were very different from those
that weighed on 17th century English Whigs. It was not Executive power that was of so
much concern to them; it was danger of the legislative branch, which they viewed as the
most dangerous branch to liberty. As Madison warned, the “legislative department
is everywhere extending the sphere of its activity, and drawing all power into its impetuous
vortex.” And indeed, they viewed the Presidency as
a check on the Legislative branch. The second contemporary way of thinking that
operates against the Executive is a notion that the Constitution does not sharply allocate
powers among the three branches, but rather that the branches, especially the political
branches, “share” powers. The idea at work here is that, because two
branches both have a role to play in a particular area, we should see them as sharing power
in that area and, it is not such a big deal if one branch expands its role within that
sphere at the expense of the other. This mushy thinking obscures what it means
to say that powers are shared under the Constitution. Constitution generally assigns broad powers
to each of the branches in defined areas. Thus, the Legislative power granted in the
Constitution is granted to the Congress. At the same time, the Constitution gives the
Executive a specific power in the Legislative realm – the veto power. Thus, the Executive “shares” Legislative
power only to the extent of the specific grant of veto power. The Executive does not get to interfere with
the broader Legislative power assigned to the Congress. In recent years, both the Legislative and
Judicial branches have been responsible for encroaching on the Presidency’s constitutional
authority. Let me first say something about the Legislature. As I have said, the Framers fully expected
intense pulling and hauling between the Congress and the President. Unfortunately, just in the past few years,
we have seen these conflicts take on an entirely new character. Immediately after President Trump won election,
opponents inaugurated what they called “The Resistance,” and they rallied around an
explicit strategy of using every tool and maneuver available to sabotage the functioning
of his Administration. Now, “resistance” is the language used
to describe insurgency against rule imposed by an occupying military power. It obviously connotes that the government
is not legitimate. This is a very dangerous – indeed incendiary
– notion to import into the politics of a democratic republic. What it means is that, instead of viewing
themselves as the “loyal opposition,” as opposing parties have done in the past,
they essentially see themselves as engaged in a war to cripple, by any means necessary,
a duly elected government. A prime example of this is the Senate’s
unprecedented abuse of the advice-and-consent process. The Senate is free to exercise that power
to reject unqualified nominees, but that power was never intended to allow the Senate to
systematically oppose and draw out the approval process for every appointee so as to prevent
the President from building a functional government. Yet that is precisely what the Senate minority
has done from his very first days in office. As of September of this year, the Senate had
been forced to invoke cloture on 236 Trump nominees — each of those representing its
own massive consumption of legislative time meant only to delay an inevitable confirmation. How many times was cloture invoked on nominees
during President Obama’s first term? 17 times. The Second President Bush’s first term? Four times. It is reasonable to wonder whether a future
President will actually be able to form a functioning administration if his or her party
does not hold the Senate. Congress has in recent years also largely
abdicated its core function of legislating on the most pressing issues facing the national
government. They either decline to legislate on major
questions or, if they do, punt the most difficult and critical issues by making broad delegations
to a modern administrative state that they increasingly seek to insulate from Presidential
control. This phenomenon first arose in the wake of
the Great Depression, as Congress created a number of so-called “independent agencies”
and housed them, at least nominally, in the Executive Branch. More recently, the Dodd-Frank Act’s creation
of the Consumer Financial Protection Branch, a single-headed independent agency that functions
like a junior varsity President for economic regulation, is just one of many examples. Of course, Congress’s effective withdrawal
from the business of legislating leaves it with a lot of time for other pursuits. And the pursuit of choice, particularly for
the opposition party, has been to drown the Executive Branch with “oversight” demands
for testimony and documents. I do not deny that Congress has some implied
authority to conduct oversight as an incident to its Legislative Power. But the sheer volume of what we see today
– the pursuit of scores of parallel “investigations” through an avalanche of subpoenas – is plainly
designed to incapacitate the Executive Branch, and indeed is touted as such. The costs of this constant harassment are
real. For example, we all understand that confidential
communications and a private, internal deliberative process are essential for all of our branches
of government to properly function. Congress and the Judiciary know this well,
as both have taken great pains to shield their own internal communications from public inspection. There is no FOIA for Congress or the Courts. Yet Congress has happily created a regime
that allows the public to seek whatever documents it wants from the Executive Branch at the
same time that individual congressional committees spend their days trying to publicize the Executive’s
internal decisional process. That process cannot function properly if it
is public, nor is it productive to have our government devoting enormous resources to
squabbling about what becomes public and when, rather than doing the work of the people. In recent years, we have seen substantial
encroachment by Congress in the area of executive privilege. The Executive Branch and the Supreme Court
have long recognized that the need for confidentiality in Executive Branch decision-making necessarily
means that some communications must remain off limits to Congress and the public. There was a time when Congress respected this
important principle as well. But today, Congress is increasingly quick
to dismiss good-faith attempts to protect Executive Branch equities, labeling such efforts
“obstruction of Congress” and holding Cabinet Secretaries in contempt. One of the ironies of today is that those
who oppose this President constantly accuse this Administration of “shredding” constitutional
norms and waging a war on the rule of law. When I ask my friends on the other side, what
exactly are you referring to? I get vacuous stares, followed by sputtering
about the Travel Ban or some such thing. While the President has certainly thrown out
the traditional Beltway playbook, he was upfront about that beforehand, and the people voted
for him. What I am talking about today are fundamental
constitutional precepts. The fact is that this Administration’s policy
initiatives and proposed rules, including the Travel Ban, have transgressed neither
constitutional, nor traditional, norms, and have been amply supported by the law and patiently
litigated through the Court system to vindication. Indeed, measures undertaken by this Administration
seem a bit tame when compared to some of the unprecedented steps taken by the Obama Administration’s
aggressive exercises of Executive power – such as, under its DACA program, refusing to enforce
broad swathes of immigration law. The fact of the matter is that, in waging
a scorched earth, no-holds-barred war of “Resistance” against this Administration, it is the Left
that is engaged in the systematic shredding of norms and the undermining of the rule of
law. This highlights a basic disadvantage that
conservatives have always had in contesting the political issues of the day. It was adverted to by the old, curmudgeonly
Federalist, Fisher Ames, in an essay during the early years of the Republic. In any age, the so-called progressives treat
politics as their religion. Their holy mission is to use the coercive
power of the State to remake man and society in their own image, according to an abstract
ideal of perfection. Whatever means they use are therefore justified
because, by definition, they are a virtuous people pursing a deific end. They are willing to use any means necessary
to gain momentary advantage in achieving their end, regardless of collateral consequences
and the systemic implications. They never ask whether the actions they take
could be justified as a general rule of conduct, equally applicable to all sides. Conservatives, on the other hand, do not seek
an earthly paradise. We are interested in preserving over the long
run the proper balance of freedom and order necessary for healthy development of natural
civil society and individual human flourishing. This means that we naturally test the propriety
and wisdom of action under a “rule of law” standard. The essence of this standard is to ask what
the overall impact on society over the long run if the action we are taking, or principle
we are applying, in a given circumstance was universalized – that is, would it be good
for society over the long haul if this was done in all like circumstances? For these reasons, conservatives tend to have
more scruple over their political tactics and rarely feel that the ends justify the
means. And this is as it should be, but there is
no getting around the fact that this puts conservatives at a disadvantage when facing
progressive holy far, especially when doing so under the weight of a hyper-partisan media. Let me turn now to what I believe has been
the prime source of the erosion of separation-of-power principles generally, and Executive Branch
authority specifically. I am speaking of the Judicial Branch. In recent years the Judiciary has been steadily
encroaching on Executive responsibilities in a way that has substantially undercut the
functioning of the Presidency. The Courts have done this in essentially two
ways: First, the Judiciary has appointed itself the ultimate arbiter of separation of powers
disputes between Congress and Executive, thus preempting the political process, which the
Framers conceived as the primary check on interbranch rivalry. Second, the Judiciary has usurped Presidential
authority for itself, either (a) by, under the rubric of “review,” substituting its
judgment for the Executive’s in areas committed to the President’s discretion, or (b) by
assuming direct control over realms of decision-making that heretofore have been considered at the
core of Presidential power. The Framers did not envision that the Courts
would play the role of arbiter of turf disputes between the political branches. As Madison explained in Federalist 51, “the
great security against a gradual concentration of the several powers in the same department,
consists in giving to those who administer each department the necessary constitutional
means and personal motives to resist encroachments of the others.” By giving each the Congress and the Presidency
the tools to fend off the encroachments of the others, the Framers believed this would
force compromise and political accommodation. The “constitutional means” to “resist
encroachment” that Madison described take various forms. As Justice Scalia observed, the Constitution
gives Congress and the President many “clubs with which to beat” each other. Conspicuously absent from the list is running
to the courts to resolve their disputes. That omission makes sense. When the Judiciary purports to pronounce a
conclusive resolution to constitutional disputes between the other two branches, it does not
act as a co-equal. And, if the political branches believe the
courts will resolve their constitutional disputes, they have no incentive to debate their differences
through the democratic process — with input from and accountability to the people. And they will not even try to make the hard
choices needed to forge compromise. The long experience of our country is that
the political branches can work out their constitutional differences without resort
to the courts. In any event, the prospect that courts can
meaningfully resolve interbranch disputes about the meaning of the Constitution is mostly
a false promise. How is a court supposed to decide, for example,
whether Congress’s power to collect information in pursuit of its legislative function overrides
the President’s power to receive confidential advice in pursuit of his executive function? Nothing in the Constitution provides a manageable
standard for resolving such a question. It is thus no surprise that the courts have
produced amorphous, unpredictable balancing tests like the Court’s holding in Morrison
v. Olson that Congress did not “disrupt the proper balance between the coordinate
branches by preventing the Executive Branch from accomplishing its constitutionally assigned
functions.” Apart from their overzealous role in interbranch
disputes, the courts have increasingly engaged directly in usurping Presidential decision-making
authority for themselves. One way courts have effectively done this
is by expanding both the scope and the intensity of judicial review. In recent years, we have lost sight of the
fact that many critical decisions in life are not amenable to the model of judicial
decision-making. They cannot be reduced to tidy evidentiary
standards and specific quantums of proof in an adversarial process. They require what we used to call prudential
judgment. They are decisions that frequently have to
be made promptly, on incomplete and uncertain information and necessarily involve weighing
a wide range of competing risks and making predictions about the future. Such decisions frequently call into play the
“precautionary principle.” This is the principle that when a decision
maker is accountable for discharging a certain obligation – such as protecting the public’s
safety – it is better, when assessing imperfect information, to be wrong and safe, than wrong
and sorry. It was once well recognized that such matters
were largely unreviewable and that the courts should not be substituting their judgments
for the prudential judgments reached by the accountable Executive officials. This outlook now seems to have gone by the
boards. Courts are now willing, under the banner of
judicial review, to substitute their judgment for the President’s on matters that only
a few decades ago would have been unimaginable – such as matters involving national security
or foreign affairs. The Travel Ban case is a good example. There the President made a decision under
an explicit legislative grant of authority, as well has his Constitutional national security
role, to temporarily suspend entry to aliens coming from a half dozen countries pending
adoption of more effective vetting processes. The common denominator of the initial countries
selected was that they were unquestionable hubs of terrorism activity, which lacked functional
central government’s and responsible law enforcement and intelligence services that
could assist us in identifying security risks among their nationals seeking entry. Despite the fact there were clearly justifiable
security grounds for the measure, the district court in Hawaii and the Ninth Circuit blocked
this public-safety measure for a year and half on the theory that the President’s
motive for the order was religious bias against Muslims. This was just the first of many immigration
measures based on good and sufficient security grounds that the courts have second guessed
since the beginning of the Trump Administration. The Travel Ban case highlights an especially
troubling aspect of the recent tendency to expand judicial review. The Supreme Court has traditionally refused,
across a wide variety of contexts, to inquire into the subjective motivation behind governmental
action. To take the classic example, if a police officer
has probable cause to initiate a traffic stop, his subjective motivations are irrelevant. And just last term, the Supreme Court appropriately
shut the door to claims that otherwise-lawful redistricting can violate the Constitution
if the legislators who drew the lines were actually motivated by political partisanship. What is true of police officers and gerrymanderers
is equally true of the President and senior Executive officials. With very few exceptions, neither the Constitution,
nor the Administrative Procedure Act or any other relevant statute, calls for judicial
review of executive motive. They apply only to executive action. Attempts by courts to act like amateur psychiatrists
attempting to discern an Executive official’s “real motive” — often after ordering
invasive discovery into the Executive Branch’s privileged decision-making process — have
no more foundation in the law than a subpoena to a court to try to determine a judge’s
real motive for issuing its decision. And courts’ indulgence of such claims, even
if they are ultimately rejected, represents a serious intrusion on the President’s constitutional
prerogatives. The impact of these judicial intrusions on
Executive responsibility have been hugely magnified by another judicial innovation – the
nationwide injunction. First used in 1963, and sparely since then
until recently, these court orders enjoin enforcement of a policy not just against the
parties to a case, but against everyone. Since President Trump took office, district
courts have issued over 40 nationwide injunctions against the government. By comparison, during President Obama’s
first two years, district courts issued a total of two nationwide injunctions against
the government. Both were vacated by the Ninth Circuit. It is no exaggeration to say that virtually
every major policy of the Trump Administration has been subjected to immediate freezing by
the lower courts. No other President has been subjected to such
sustained efforts to debilitate his policy agenda. The legal flaws underlying nationwide injunctions
are myriad. Just to summarize briefly, nationwide injunctions
have no foundation in courts’ Article III jurisdiction or traditional equitable powers;
they radically inflate the role of district judges, allowing any one of more than 600
individuals to singlehandedly freeze a policy nationwide, a power that no single appellate
judge or Justice can accomplish; they foreclose percolation and reasoned debate among lower
courts, often requiring the Supreme Court to decide complex legal issues in an emergency
posture with limited briefing; they enable transparent forum shopping, which saps public
confidence in the integrity of the judiciary; and they displace the settled mechanisms for
aggregate litigation of genuinely nationwide claims, such as Rule 23 class actions. Of particular relevance to my topic tonight,
nationwide injunctions also disrupt the political process. There is no better example than the courts’
handling of the rescission of DACA. As you recall, DACA was a discretionary policy
of enforcement forbearance adopted by President Obama’s administration. The Fifth Circuit concluded that the closely
related DAPA policy (along with an expansion of DACA) was unlawful, and the Supreme Court
affirmed that decision by an equally divided vote. Given that DACA was discretionary — and
that four Justices apparently thought a legally indistinguishable policy was unlawful —President
Trump’s administration understandably decided to rescind DACA. Importantly, however, the President coupled
that rescission with negotiations over legislation that would create a lawful and better alternative
as part of a broader immigration compromise. In the middle of those negotiations — indeed,
on the same day the President invited cameras into the Cabinet Room to broadcast his negotiations
with bipartisan leaders from both Houses of Congress — a district judge in the Northern
District of California enjoined the rescission of DACA nationwide. Unsurprisingly, the negotiations over immigration
legislation collapsed after one side achieved its preferred outcome through judicial means. A humanitarian crisis at the southern border
ensued. And just this week, the Supreme Court finally
heard argument on the legality of the DACA rescission. The Court will not likely decide the case
until next summer, meaning that President Trump will have spent almost his entire first
term enforcing President Obama’s signature immigration policy, even though that policy
is discretionary and half the Supreme Court concluded that a legally indistinguishable
policy was unlawful. That is not how our democratic system is supposed
to work. To my mind, the most blatant and consequential
usurpation of Executive power in our history was played out during the Administration of
President George W. Bush, when the Supreme Court, in a series of cases, set itself up
as the ultimate arbiter and superintendent of military decisions inherent in prosecuting
a military conflict – decisions that lie at the very core of the President’s discretion
as Commander in Chief. This usurpation climaxed with the Court’s
2008 decision in Boumediene. There, the Supreme Court overturned hundreds
of years of American, and earlier British, law and practice, which had always considered
decisions as to whether to detain foreign combatants to be purely military judgments
which civilian judges had no power to review. For the first time, the Court ruled that foreign
persons who had no connection with the United States other than being confronted by our
military on the battlefield had “due process” rights and thus have the right to habeas corpus
to obtain judicial review of whether the military has a sufficient evidentiary basis to hold
them. In essence, the Court has taken the rules
that govern our domestic criminal justice process and carried them over and superimposed
them on the Nation’s activities when it is engaged in armed conflict with foreign
enemies. This rides roughshod over a fundamental distinction
that is integral to the Constitution and integral to the role played by the President in our
system. As the Preamble suggests, governments are
established for two different security reasons – to secure domestic tranquility and to
provide for defense against external dangers. These are two very different realms of government
action. In a nutshell, under the Constitution, when
the government is using its law enforcement powers domestically to discipline an errant
member of the community for a violation of law, then protecting the liberty of the American
people requires that we sharply curtail the government’s power so it does not itself
threaten the liberties of the people. Thus, the Constitution in this arena deliberately
sacrifices efficiency; invests the accused with rights that that essentially create a
level playing field between the collective interests of community and those of the individual;
and dilutes the government’s power by dividing it and turning it on itself as a check, at
each stage the Judiciary is expressly empowered to serve as a check and neutral arbiter. None of these considerations are applicable
when the government is defending the country against armed attacks from foreign enemies. In this realm, the Constitution is concerned
with one thing – preserving the freedom of our political community by destroying the
external threat. Here, the Constitution is not concerned with
handicapping the government to preserve other values. The Constitution does not confer “rights”
on foreign enemies. Rather the Constitution is designed to maximize
the government’s efficiency to achieve victory – even at the cost of “collateral damage”
that would be unacceptable in the domestic realm. The idea that the judiciary acts as a neutral
check on the political branches to protect foreign enemies from our government is insane. The impact of Boumediene has been extremely
consequential. For the first time in American history our
armed forces is incapable of taking prisoners. We are now in a crazy position that, if we
identify a terrorist enemy on the battlefield, such as ISIS, we can kill them with drone
or any other weapon. But if we capture them and want to hold them
at Guantanamo or in the United States, the military is tied down in developing evidence
for an adversarial process and must spend resources in interminable litigation. The fact that our courts are now willing to
invade and muck about in these core areas of Presidential responsibility illustrates
how far the doctrine of Separation of Powers has been eroded. In this partisan age, we should take special
care not to allow the passions of the moment to cause us to permanently disfigure the genius
of our Constitutional structure. As we look back over the sweep of American
history, it has been the American Presidency that has best fulfilled the vision of the
Founders. It has brought to our Republic a dynamism
and effectiveness that other democracies have lacked. At every critical juncture where the country
has faced a great challenge – – whether it be in our earliest years as
the weak, nascent country combating regional rebellions, and maneuvering for survival in
a world of far stronger nations; – whether it be during our period of continental
expansion, with the Louisiana Purchase, and the acquisition of Mexican territory;
– whether it be the Civil War, the epic test of the Nation;
– World War II and the struggle against Fascism;
– the Cold War and the challenge of Communism; – the struggle against racial discrimination;
– and most recently, the fight against Islamist Fascism and international terrorism. One would have to say that it has been the
Presidency that has stepped to the fore and provided the leadership, consistency, energy
and perseverance that allowed us to surmount the challenge and brought us success. In so many areas, it is critical to our Nation’s
future that we restore and preserve in their full vigor our Founding principles. Not the least of these is the Framers’ vision
of a strong, independent Executive, chosen by the country as a whole.
