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Attorney General Barr to give the 15th Annual Olson Lecture #FedSoc2019
Standing Ovation for AG Barr
Topic: The Constitution's approach to executive power. More than any other branch, the executive branch has met the expectations of the framers. We've seen a steady encroachment on executive branch by other branches.
This process has substantially weakened the presidency to the detriment of the nation.
Grammar school version of framing was that it was a rebellion against monarchical power, and the goal of the framers was to keep the executive weak. This is misguided. After Glorious Revolution, Parliamentary Supremacy reigned. Prime antagonist of founders was Parliament.
Under Articles of Confederation, on executive power. Changed with Convention of 1787. Miracle in Philadelphia was the creation of a strong executive, independent of, and co-equal with other branches of government.
The framers understood that unity of person is essential to the executive.
The framers thought of executive power as a distinct specie of governmental power. It had the power to executive the laws passed by the legislature.
Framers understood that executive more than this. Entailed sovereign functions like foreign relations and prosecution of a war. This must be flexible and meet contingencies. Constitution vested authority in these spheres to executive.
Executive has power to address exigent circumstances, when the law is silent or inadequate. "Residual power to meet contingencies" is federative power discussed by Locke in his 2nd treatise.
One of the more amusing aspects of progressive politics is their attack on the unitary executive theory. (He made an exaggerated AHHH sound).
In reality, the idea of the unitary does not go to breadth of executive, but whatever those powers may be, those powers must be exercised under the president's supervision. It's not new. It's not a theory. It's a description of what the framers did in Article II.
The framers expected each branch to jostle with the other. This was natural and salutary. They provisioned each branch to fight and defend itself in these interbanch struggles. How is the executive currently stacked?
The deck is stacked against the executive. Since the 1960s the powers of the executive have been grinded down. The President's discretion has been smothered by the other branches.
People think the greatest danger of government--becoming oppressive--is from the executive branch. And the legislative and judicial protect the people from an autocrat. That's how the media portrays the separation of powers. This view is wrong. (I'm at the media table)
The framers viewed the legislative branch as the most dangerous branch. Madison - Drawing all powers into its "impetuous vortex."
Whenever I see a court opinion that uses the word "share" I want to run in the opposite direction.
Immediately after the election, opponents adopted what they called the resistance. They would every tool to sabotage the functioning of the executive branch. Resistance is the term used to describe insurgency by occupying military power. It connotes gov is not legitimate.
Instead of viewing themselves as loyal opposition, they are engaged in war to cripple by any means necessary a duly elected government. A prime example is Senate's unprecedented abuse of advice and consent process.
Can a future President form a functioning government if his or her party does not own the Senate?
Congress has largely abdicated its primary function: lawmaking on pressing issues. This trend started with the creation of so-called independent agencies nominally within the executive branch.
Congress has withdrawn from legislating, it has a lot of time on its hands. Opposition party has drowned the executive branch with oversight demands for documents and testimony. Congress has some oversight power as an incident to its legislative power.
Avalanche of subpoenas is plainly designed to incapacitate the executive branch.
We have seen substantial encroach in area of executive privilege.
The travel ban was amply supported by law and patiently litigated through the courts for vindication. Measures taken by this administration seem tame when compared to the unprecedented steps taken by Obama administration use of executive power.
Through the scorched earth, no holds barred war of resistance, the left is shredding rule of law and undermining rule of law.
Progressives teach politics as a religion. Mission: use coercive power of the state to remake society in their own image, according to an abstract ideal of perfection. Whatever means they use are therefore justified bc they are virtuous ppl pursuing deific end.
Will use any means necessary to achieve their ends, regardless of the collateral consequences and systemic implications. Never ask if action could be applied by a general rule of conduct, equally applicable to all sides. What if show was on the other foot?
We hear irresponsible proposals to do away with electoral college or pack the courts. Who is shredding constitutional norms?
Conservatives do not seek earthly paradise. We are preserving over the long run freedom and order for healthy development of natural civil society and individaul human flourishing. We test the propriety and wisdom under a rule of law standard.
We ask what impact on society over long run if action we are taking was universalized, in all like circumstances. That is inherent in conservative project.
The judicial branch. The judicial branch has encroached on executive responsibility. 1. The Court has appointed itself as ultimate arbiter of separation of powers disputes.
2. The Court has usurped authority for itself under rubric of "review," substituting its judgment to executive, in areas committed to the executive, or by assuming direct control over issues considered at the core of presidential power.
The Constitution gives Congress many clubs to beat the executive. But not going to courts. When the Court resolves a dispute between the political branches, the court does not act as a co-equal.
And elected branches have no incentive to debate the issues. Won't take hard choices to forge a compromise. The political branches can work out political controversies without resorting to the court. The courts cannot meaningful resolve interbranch disputes.
Courts have usurped presidential decisionmaking. They have expanded the scope of judicial review. Many critical decisions are not amenabel to the model of judicial decisionmaking.
They cannot be reduced to evidentiary standards. They require prudential judgments. Must be made promptly with incomplete and uncertain information. Involves weighing wide range of competing risks and making predictions about the future.
Courts should not substitute their judgments for the judgment reached by the accountable executive branch. Today, they do so on matters of national security and foreign affairs. The travel ban is a good example.
The travel ban was based on plain statutory text, in black and white. Common denominator: the countries were hubs of terrorist activity, and lacked law enforcement agencies to identify security risks.
Despite the fact that there were justifiable security measures, the district court in HI and CA9 blocked this public safety measure for 1.5 years bc motivate was religious bias against Muslims. This was just the first measure based on good security grounds that was second guess.
Subpoenas issued to executive branch officials to determine his motives is no more proper than a subpoena issued to a judge to determine the real reasons for his decision
Since Trump has taken office, district courts have issued more than 40 nationwide injunctions. During Obamas first two terms, district courts were issued twice, both immediately vacated by the 9th Circuit.
Every major policy of the Trump administration has been subject to immediate freezing by the lower courts. No other president has been subjected to such sustained efforts to debilitate his agenda.
Barr moves onto rescission of DACA. The 5th Circ concluded that closely related DAPA policy was unlawful. Given that DACA was discretionary, and four justices apparently thought indistinguishable policy was unlawful, Trump determined that DACA should be suspended.
On same day President broadcasted negotiations with Congress, district judge in CA enjoined rescission of daca nationwide. Negotiations collapsed. one side achieved its preferred outcome through judicial means.
Just this week, the Court finally heard arguments on the legality of the rescission. Likely wont decide it until the summer.
President Trump will have spent his entire first term enforcing Obama discretionary policy, and half of SCOTUS determined that indistinguishable policy was unlawful.
Barr brings up Guantanamo cases from Bush administration. This usurpation climaxed in Boumeidenne (2008). Court overturned hundreds of years of law and practice, that considered foreign detention to be military judgment, civilian judges have no power to review
The Court has taken rules that government domestic criminal justice process, and extended to military context. This rides roughshod over role played by the President.
The Constitution does not confer rights of foreign enemies. It maximizes efficiency to ensure government victory, even in the case of collateral damage that would be unacceptable in law enforcement context. He describes Judiciary's review as "insane."
Impact of Boumediene has been very consequential. For the first time in our history, our armed forces are unable to take prisoners. If we identify a terrorist on the battle field, we can kill them with a drone stroke summarily
But if we capture them, the military is tied down to spend years to interminable litigation as to whether there was a sufficient basis to capture this prisoner. The doctrine of separation of powers has been eroded.
We should now allow the passions of the moment to disfigure the genius of our constitutional order. The American presidency has best fulfilled the vision of the founders.
At every juncture where the country has faced a great challenge, the American presidency has stepped to the floor and provided the perseverance to surmount the challenges, and brought us through to success. We need to preserve the framers vision of a strong, independent exec
That's a wrap. Another standing ovation.
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