Barr speaks at the Federalist Society's National Lawyers Convention

[Applause] i'm eugene meyer president of the society and i'm delighted to welcome you to the 15th annual barbara olson memorial lecture this memorial lecture started as many of you know shortly after 9 11. this lecture started as many of you know shortly after 9 11. can you hear better sorry ted olson's inaugural lecture reminded us of what it means to be an american and how our legal tradition is a critical part of our identity as americans that reminder is perhaps even more crucial today both ted who's here today and barbara understood this connection we want the lecture series to remind lawyers of it so they foster legal principles that advance individual liberty personal responsibility and the rule of law other lecturers have included justice scalia chief justice roberts vice president cheney judges ken starr robert bork ray randolph edith jones doug ginsberg dennis jacobs jeff sudden and then judge now justice neil gorsuch also included former attorney general michael mccacey former white house counsel don mcgann peter thiel john allison and senators tom cotton and ben sasse that brings us to today's lecture it is my privilege to introduce for this year's barbara olson lecturer the honorable william bower attorney general of the united states now people serve in government for a wide variety of reasons in addition to performing valuable public service there is power there is a stepping stone to even higher office or the prestige of having had the position and the honor one receives while serving the country in such an important role but in the current case it's really difficult to see how most of these self-serving incentives apply the one that still does is performing a valuable public service indeed much of his career has been spent performing exactly such services going back to his early days with the cia he received his m.a in uh from colombia in chinese studies and that may come in handy and is his gw from georgetown george washington he clerked for the underrated judge malcolm wilkie on the u.s court of appeals for the d.c circuit and back to public service he worked under president reagan on the domestic policy staff and his assistant journey attorney general for office of legal counsel and then deputy attorney general and finally as the 77th attorney general under the first president bush in the private sector he was a partner in the law firm of shaw pittman and later kirkland and ellis and he's after his service as attorney general the first time he served as executive vice president general counsel of first gte and then verizon and he is one of only two people in the history of the country to serve the country twice as attorney general it's my honor to present the 82nd attorney general of the united states william barry thank you thank you very much thank you very much [Applause] it's a real honor for me to be here tonight and to join with all of you i appreciate you all being here and it's a particularly on honor for me to to join all the very distinguished lawyers in this room gene thank you for that introduction but i'm the 85th attorney general and chinese has come in very handy because i find that when you i when you read congressional enactments from right to left they make a lot more sense [Applause] it's an honor to be here this evening and to deliver the 19th annual barbara k olson memorial lecture i've had the privilege of uh being friends with ted since we first met in the reagan administration and ted was head of the office of legal counsel and i had the privilege of knowing barbara and i had great affection for her and i miss her brilliance and the bullies and uh it's a real privilege for me to participate in this lecture as a way of honoring barbara the the the you know i i was trying to figure out what would be an appropriate speech to give here at the federalist society and i was having difficulty and i thought the notre dame speech had done so well i was just going to deliver it again but recognizing that this year's annual convention is originalism the theme of it which is a fitting choice though though i i dare say it's not it's somewhat unoriginal for the the federalist society i say that because we all know that the federalist society has played a historic role in advancing the principles of originalism and while other organizations have contributed over the years certainly 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 the cadre of others who were firmly committed to an original originalist approach to the law i was honored to work with ed and ken cribb uh in the in in the white house in the reagan white house and i was also honored to be there several weeks ago in the oval office when president trump presented ed meese with the presidential medal of [Applause] freedom as president trump 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 and i'm also proud to serve as attorney general for president trump who has taken up that torch in his judicial appointments that is true of his two outstanding appointments to the supreme court supreme court justices neil gorsuch and brett kavanaugh [Applause] and and of the many superb appeals and district court judges he has appointed many of whom are here this week and of the many outstanding digital nominees to come many of whom are also here this week i wanted to choose a topic this afternoon for this afternoon's lecture that had an originalist angle and it will likely come as little surprise to this group that i've 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 the steady encroachment on executive authority by the other branches of government this process i think has substantially weakened the function of the presidency to the detriment of the nation and this afternoon i would like to expand a bit on these themes first let me say a little about the frame what the framers had in mind in establishing an independent executive in article two of the constitution the grammar school civics class version of our revolution is that it was a rebellion against monarchical tyranny and that in framing our constitution one of the preoccupations the main preoccupation 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 overwhelming parliament indeed british thinkers came to conceive of parliament as the very seat of sovereignty during the revolutionary era american thinkers who initially 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 independent of the legislative power 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 co-equal with the other 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 was almost lost and was a bumbling enterprise because of the lack of strong executive leadership and under the articles of confederation they had been mortified by the inability of the states to protect themselves against foreign impositions or to be taken seriously in the international arena they had also seen that after the revolution too many states had adopted constitutions with weak executives overly subordinate to the legislatures and where this had been the case state governments had proven incompetent and tyrannical from these practical experiences the framers had come to appreciate that to be successful a 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 councils 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 for the prompt clear and consistent action so necessary in an executive unity of person is essential while there 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 power powers theorists such as polybius and montesquieu just as they had the framers thought executive thought of executive power as a distinct species of governmental power to be sure executive power includes the responsibility for carrying into effect executing the laws passed by the legislature that is applying the general rules to particular situations 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 contingency they agreed that due to the very nature of the activities involved in the kinds of decision-making that are required the constitution generally vested authority over these spheres in the executive for example jefferson our 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 natural disasters or plagues this residual power to meet contingency is essentially the federative power discussed by locke in his second treatise and finally there are the executive powers necessary for internal management of the executive these are the powers necessary for the president to superintend and control the executive functions including the powers necessary to protect the independence of the executive branch and the confidentiality of its internal deliberations some of these powers are expressed in the constitution such as the power of appointment and others are implied implicit in the constitution in constitution uh for example 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 newfangled theory to justify executive power of of sweeping an unfettered scope i think some of you may have seen that horrible movie vice about vice president dick cheney and there's this scene where the young dick cheney he was young i think he may have been 36 and he was chief of staff at the white house he goes in to meet the young nino scalia over at the office of legal counsel and they talk about this new nefarious theory that will allow them to just take over the world and it's called the unitary executive theory and some of you may recall when i was up for confirmation all these democratic senators saying how concerned they were about my adherence to the unitary executive theory in reality the doc the idea of the unitary executive does not go so much to the breadth of presidential power it goes rather the idea is that whatever the executive power may be those powers must be exercised under the president's supervision this is not new and it's not a theory it's a description of what the framers did in article two [Applause] now after you decide to establish an executive function that's independent of the legislature naturally the next question is who's going to perform that function the framers had two potential models they could insinuate checks and balances into the executive branch by conferring power on multiple individuals such as a council and thus dividing the power within the executive alternatively they could vest executive power in a solitary individual and the framers quite explicitly and uniformly 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 and even jefferson who's 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 americans unitary executive as the signal feature that distinguished america's success from france's failed republican experiment the implications of the framers decisions 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 new theory of the unitary executive now we all understand that the framers expected that the three branches would be jostling and 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 inter-branch struggles for power so let me turn now to how the executive is presently faring in these inter-branch battles i'm concerned that the deck has become stacked against the executive and that since the mid-60s there's 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 sort of conventional wisdom that tend to operate to the disadvantage of the executive the first is this notion that politics in a free republic is all about the people's branch the legislative branch and the judicial branch protecting liberty by imposing restrictions on the executive the premise is that the greatest danger to the greatest danger of government becoming oppressive is from the is from the executive in the prospect of executive excess so that there's this knee-jerk tendency to see the legislative and judicial branches as the good guys protecting the people from a rapacious would-be autocrat that is the the media's general presentation of separation of powers issues this prejudice is wrong-headed and atavistic it comes out of the english wig view of politics an english constitutional experience where political evolution was precisely that you started out with the king having all the cards he holds all power including legislative and judicial and 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 the powers of the judiciary certainly a watershed in this evolution was the glorious revolution of 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 principles of 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 and part of their more perfect construction was a new kind of executive they created an office that already was the ideal wig executive it already had built into it the limitations that wig doctrine had aspired to for centuries it did not have the power to tax and spend it was subject to the writ of habeas corpus it was bound by due process and enforcing the laws against members of the body politic it was elected for a limited term of office and it was elected by the nation as a whole that is a remarkable democratic institution the only figure selected by the nation as a whole and 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 than those that weighed on the whigs of the 17th century it was not that executive power was of so much concern to them it was the danger of the legislative branch at that time 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 powers into its impetuous vortex and indeed they viewed the presidency as a check on the legislative branch the second contemporary way of thinking that i think operates against the executive is the 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 really such a big deal if one branch expands its role a bit within that sphere whenever i see a court opinion that uses the word share i want to run in the other direction it reminds me of my there's a kid at my grand child's preschool who as soon as my grandchild is playing with playing with a toy reaches over and says share share this mushy thinking obscures what it means to say that powers are shared under the constitution the constitution generally assigns broad powers to each of the branches in defined areas thus the legislative power is granted to the in the constitution whatever the power the legislative power is in the constitution is granted to congress at the same time the constitution gives the executive a specific power in the legislative arena the veto power thus the executive shares legislative power but only to the extent of that specific grant of the veto power the executive does not get to interfere in the legislative power in a broader sense than that that was the legislative power that was assigned to congress now in recent years both the legislative and judicial branches i think have been responsible for encroaching on the president's constitutional authority so let me first say something about the legislature as i've said the framers fully expected intense pulling and hauling between congress and the executive unfortunately just in the past few years we have seen this con 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 to sabotage the functioning of the executive branch and his administration now resistance is the language used to describe insurgency against rule imposed by an occupying military power it obviously connotes it obviously connotes that the government is not legitimate this is a very dangerous and 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 this country for over 200 years they essentially see themselves as engaged in a war to 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 of course free to exercise that power to reject what it deems to be 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 branch of government yet that is precisely what the senate minority has done from president trump's very first day in office as of september of this year the senate has been forced to invoke cloture on 236 trump nominees each of those representing its own massive consumption of legislative time meant only to delay the inevitable confirmation how many times was cloture invoked on nominees during president obama's administration 17 over eight years and how about 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 in recent years has largely abdicated its core function of legislating on the most pressing issues facing the nation they either declined to legislate on major questions or if they do they 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 as we all know in the wake of the 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 acts creation of the cfpb 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 on its hands and in the pursuit of this true a choice of how to pursue uh uh what to do with all this time they have decided especially the opposition party to drown the executive branch with oversight demands for testimony and documents now i don't deny that congress has some implied authority to conduct oversight as an income as an as an incident to its legislative power but the sheer volume of what we see today the pursuit of scores of parallel 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 private and the private internal deliberative process are essential to 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 foi what is it foia foia for congress and 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 the executive internal deliberations 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 confidence the need for confidentiality in the executive branch necessarily means that some communications must must remain private 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 even the attorney general 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 of course there is no substance to these claims when i ask my friends on the other side what exactly are you referring to i usually get vacuous stares and sputtering about the travel ban or some such thing the fact is that yes while the president has certainly thrown out the traditional beltway playbook and punctilio he he was he was up front about what he was going to do and the people decided they wanted him to serve as president [Applause] but what i'm talking about now are fundamental constitutional precepts and the fact is that this administration's policy actions and its policy initiatives including the travel ban have transgressed neither constitutional nor traditional norms and have been amply supported by the law and patiently litigated through the courts 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 exercise of executive power and i say that as someone who admires a muscular executive 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 undermining the rule of law [Applause] this highlights a basic disadvantage that conservatives have had in contesting the political issues of the day it goes back to the beginning of the republic it was averted to by that old curmudgeonly federalist fisher ames in several of his essays during the early republic and i para a paraphrase in any age the so-called progressives treat politics as a 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 virtuous people pursuing a deity end they are willing to use any means necessary to gain momentary advantage in achieving their end regardless of the collateral consequences and the systemic implications they never ask whether the action they take could be justified as a general rule of conduct equally applicable to all sides what would we think if the shoe were on the other foot and yet we hear them irresponsibly tabling proposals to do away with the electoral college or to pack the courts who's shredding constitutional norms [Applause] 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 the healthy development of natural civil society and individual human flourishing and this means that we naturally test the propriety and wisdom of action under a rule of law standard the essence of that standard is to ask what the overall impact on society over the long what will be the the the impact on society over the long run if the action we are taking or the principle we are applying in a given circumstance was universalized that is would it be good for society as a whole over the long run if this was done in all like circumstances that's what rule of law is about and that is inherent in the conservative project [Applause] let me turn now to what i believe has been the prime source of the erosion of separation of powers principles generally and the executive branches authority specifically and 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 and 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 the executive thus preempting the political process which the framers conceived of as the primary check on inter-branch rivalry and second the judiciary has usurped presidential authority for itself either by under the rubric of review substituting its judgment for the executive in areas committed to the president's discretion or 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 the 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 ambition will be made to counteract ambition and by giving each the congress and the presidency the tools to fend off the encroachment of the others the framers believe this would force compromise and political accommodation the constitutional means to resist encroachment that madison describes takes many forms as 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 have them resolve the disputes and that omission makes sense when the judiciary ports to pronounce a conclusive resolution to constitutional disputes between the political 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 and accountability to the people and they will not even try to make the hard choices necessary to forge a 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 the courts can meaningfully resolve inter-branch 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 the pursuit of his executive function nothing in the constitution provides a manageable standard for resolving such a question and it is thus no surprise that the courts have produced amorphous unpredictable balancing tests like the courts holding in morris and v olsen the congress didn't did not quote disrupt the proper balance between the coordinate branches by preventing the executive branch from accomplishing its constitutionally inside assigned functions apart from this their overzealous role in inter-branch disputes the courts have increasingly engaged directly in the usurpation of presidential decision making one way courts have effectively done this is by expanding both the scope and the intensity of judicial review in recent years we we have lost sight of the fact that many critical decisions in our 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 and they are decisions that are frequently have to be made promptly on incomplete and uncertain information and necessarily involve the weighing of a wide range of competing risks and making predictions about the future such decisions frequently call into play the so-called precautionary principle and this is the principle that when a decision maker is accountable for discharging a certain obligation such as protecting the public's security 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 on matters that only a few decades decades ago would have been unimaginable such as matters directly involving national security and foreign affairs the travel ban case is a good example there the president as you all know made a decision under an explicit legislative grant of authority in black and white that he had the authority as well as his long recognized constitutional mass national security role to temporarily suspend entry to aliens coming from a half dozen countries pending adoption of more effective vetting procedures the common denominator of the initial countries selected was that they were unquestionably hubs of terrorist activity which lacked functional central governments and responsible law enforcement and intelligence agencies that could assist us in identifying the security of risks among their nationals seeking to enter the united states but despite the fact that there were clearly justifiable security grounds for the measure the district court in hawaii and then and the ninth circuit blocked this public safety measure for a year and a half the theory was 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 res of the uh 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 government 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 with very few exceptions neither the constitution nor the administrative procedures act or any other relevant statute calls for judicial review of executive motives 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 law than a subscene subpoena to a court to try to determine a judge's real motive in issuing a decision the court's 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 the executive responsibility have been usually hugely magnified by another judicial innovation the nationwide injunction first used in 1963 and sparingly since then until recently these court orders enjoin enforcement of a policy not just as to the parties before the court but nationwide against everybody now since president trump has taken office district courts have issued over 40 nationwide injunctions against the government by comp by comparison during president obama's first two years district courts had issued two nationwide injunctions both of which immediately 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 to debilitate his agenda the legal flaws underlying nationwide injunctions are myriad and just to summarize briefly they have no foundation in the article iii jurisdiction or traditional equitable powers of the courts they radically inflate the role of district court judges allowing anyone of well over 600 individuals to single-handedly 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 and consequential legal issues in an emergency posture with limited briefing and they enable transparent forum shopping which shapes public confidence in the integrity of the judiciary and they displace the settled mechanisms of aggregate litigation of genuinely nationwide claims such as rule 23 class actions now of particular relevance to my topic tonight nationwide injunctions also disrupt the political process there's no better example than the court's handling of the rescission of daca as you recall daca was a discretionary policy of enforcement forbearance adopted by the obama administration and the fifth circuit concluded that the closely related dapa policy along with an expansion of the daca policy was unlawful and the supreme court affirmed that decision by an equally divided vote given that daca was discretionary premised on the exercise of executive discretion 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 and in the middle of those negotiations indeed on the very same day the president invited the cameras into the cabinet room to broadcast his negotiations with the bipartisan leadership of congress a district court judge in the northern district of california enjoying the rescission of daca nationwide unsurprisingly the negotiations over immigration legislation collapsed after one side achieved its preferred outcome through this judicial means and just this week the supreme court finally heard arguments on the locality of the daca rescission the court will not likely decide the case until next summer meaning that the president trump will have spent almost his entire first term enforcing president obama's signature immigration policy even though that policy was entirely discretionary and half the supreme court had concluded that it was legally indistinguishable a legally indistinguishable policy was unlawful that's not how the democratic system should work now to my mind the most blatant and consequential usurpation of executive power in our history was played out during the administration of 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 boumedian 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 have no connection with the united states other than being confronted by our military forces on the battlefield had due process rights and thus have the right to habeas corpus to obtain judicial review of whether the military has sufficient evidentiary basis for holding them as prisoners in essence the court has taken the rules that govern our domestic criminal justice process and carry them over and superimpose them on the nation's activities when it is engaged in armed conflict with foreign enemies this rides a rough shot over roughshod over a fundamental distinction that is integral to the constitutional and integral to the role played by the president in our system as the preamble suggests governments are established for two security reasons two different security reasons to secure domestic tranquility and to provide for defense against external dangers and there 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 that it does not itself threaten the liberties of the american people and thus the constitution in this arena deliberately sacrifices efficiency it invests the accused with rights that are essentially that essentially create a level playing field between the collective interests of the community and those of the individual and it dilutes the government's power by dividing it and turning it on itself as a check and at each stage of the criminal justice process 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 adversaries in this realm the constitution is concerned with one thing preserving the freedom of the political community by destroying the external threat and 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 law enforcement 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 bovenian has been extremely consequential i see its consequences every day for the first time in american history our armed forces are incapable of taking prisoners we are now in a crazy position that if we identify a terrorist enemy on the battlefield such as an isis leader we can kill them with a drone strike or any weapon summarily but if we capture them the military is tied down in developing evidence for an adversarial process and must spend massive resources in interminable litigation as to whether there was a sufficient basis to capture this prisoner the fact that our courts are now willing to invade and muck about in this core area of presidential responsibilities responsibility illustrates how far the doctrine of separation of powers has been eroded now 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 in in my view 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 plainly lack and at every critical juncture where the country has faced a great challenge whether it be our earliest years as a weak nascent country combating internal rebellions and maneuvering for survival in a world of far stronger nations or whether it has been during our period of continental expansion with the louisiana purchase and the acquisition of mexican territory that took us all the way across the continent or whether it be the civil war the epic test of this nation or world war ii the struggle against fascism or the cold war and the challenge of communism and 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 american presidency that has stepped to the fore and provided the leadership consistency energy and perseverance that allowed us to surmount these challenges and brought us through to success in so many areas it is critical to our nation's future that we restore and preserve in full vigor our founding principles and not the least of these is the framers vision of a strong independent executive chosen by the country as a whole thank you very much thank you mr attorney general uh we very much appreciate your remarks uh we are going now to uh we have a reception for those who are registered for it across the hall and to some degree particularly in the back in the chinese room if we can clear out fairly quickly that would be helpful because i know they have a wedding scheduled in the hotel right

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Id: MeMwdtbPR6g

Length: 66min 45sec (4005 seconds)

Published: Fri Nov 15 2019