[inaudible] [applause] president of the society and im delighted to welcome you to the 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 mark ted olsons inaugural lecture remind you of what it means to be an american and how ourlegal tradition is a criticalpart of our identity as americans. That reminder is perhaps even more crucial today. Both ted was here today and barbara understood this connection. We want the lecture series to remind lawyers of it so they foster legal principles advanced individual liberty, personal responsibility and the rule of law and other lecturers have included justice scalia, Vice President cheney, ray randolph, edith jones, doug ginsberg, dennis jenkins, jeff sutton and justice neil gorsuch. Don mcgann, peter seals, john allison senators tom cotten and ben sasse. That brings us to todays lecture. It is my privilege to introduce the honorable william barr, attorney general to theUnited States. Peopleserving government for a wide variety of reasons in addition to performing valuable Public Service. Theres power, theres a steppingstone even Higher Office or the prestige of having had the position and then the other one receives while serving the country in such an Important Role but in the current case, its difficult to see how most of these selfserving incentives apply. One that still does is forming a valuable Public Service. And indeed much of his career has been spent performing exactly such Services Going back to his early days with the cia. He received his ma in, from columbia in chinese studies and that might come in handy. And his gw from georgetown, george washington. The clerk for the underrated judge malcolm will be on the uscourt of appeals for the dc circuit. And back to Public Service you worked under president reagan on domestic policy staff and his assistant attorney general for office of Legal Counsel and then Deputy Attorney general and finally as the 77 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 Ellis and after his service as attorney general the first time he served as executive Vice President and general counsel of first dte 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. Its my honor to prevent the 82nd attorney general of the United States, william barr. [applause]. Thank you very much thank you very much. Its a real honor for me to be here tonight and to join with all of you. I appreciate you all being here and particularly its an honor for me to join all of the very distinguished lawyers in this room. Jean, thank you for that introduction but im the 85th attorney general. And chinese has come in very handy because i find that when you read congressional and mints from right to left, they make a lot more sense. Its an honor to be here this evening. And to deliver the 19th annual Barbara K Olson memorial lecture. Ive had the privilege of being friends with ted since we first met in the Reagan Administration and and was head of the office of Legal Counsel and have the privilege of knowing barbara and had great affection for her and i miss her brilliance and ambulance and its a real privilege for me to participate in this lecture as a way of honoring barbara. The guy, i was trying to figure out what would be an appropriate speech to get 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. [applause] but recognizing that this years annual convention is original is in, the theme of it which is a fitting choice though i daresay its somewhat unoriginal for the Federalist Society. I say that because we all know that the Federalist Society has played a historic role in advancing the principles of original is him and while other organizations have contributed over the years, certainly the Federalist Society has been in the vanguard. All watershed for the cause was the decision of the American People to send Ronald Reagan to the white house accompanied by his close advisor and meese and the cadre of others were firmly committed to an originalist approach to the law. I was honored to work with ed and ken 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 and meese with the president ial medal of freedom. [applause] as president , trump aptly noted over the course of his career and meese has been among the nations most eloquent champions for following the constitution as written. And im 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. And of the many super appeals and District Court judges he has appointed, many of whom are here thisweek. And of the many outstanding judicial nominees to come, many of whom are also here this week. I wanted to choose a topic this afternoons lecture that had an originalist angle and it will likely come as little surprise to this group that ive chosen to speak about the constitutions approach to executive power. I deeply admire the american presidency as a political and constitutionalinstitution. I believe it is one of the great and remarkable innovation and has been one of the most successful features of the and protecting the liberties of the American People. More than any other branch, it has full expectations of the framers. Unfortunately over the past several decades we have seen a steady encroachment on executive authority by the other branches of the government. This process i think as 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 things. First, let me say a little about what the framers had in mind in establishing an independent executive in article 2 of theconstitution. The Grammar School civics class version of our revolution is that it was a rebellion against monarch of tyranny in framing our constitution, one of the preoccupations, the main preoccupation of the founders was to keep the executive week. This is misguided. By the time of the glorious revolution of 1689, monarch all power waseffectively neutered and had begun its steady decline. Parliamentary power was well on its way to supremacy and was effectively in the drivers seat. By the time of the American Revolution patriots well understood that their prime antagonist was an overweening parliament. Indeed, british thinkers came to conceive of parliament as the very seat of sovereignty. During the revolutionary era, american thinkers who initially considered and operating a republican form of government tended to think of the executive component as a essentially an errand boy of a supreme legislative branch. Often the executive sometimes constituted as a multimember counsel 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 copeople with 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 adopted constitutions with weak executives overly subordinate to the legislatures. And where this had been the case, state governments had proven incompetent and radical. From these practical experiences, the framers had come to appreciate that the basic, 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 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 agreementabout its nature. Just as the great separation of powers theorists such as polybius and montesquieu and walk, just as they had , the framers thought executive, thought of executive power is 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 of essential sovereign functions such as the conduct of Foreign Relations in foreign war which by their nature, directed by a preexisting legal regime but rather demands speed, secrecy, unity of purpose and prudent judgment to make contingency. They agree that due to the very nature of the activities involved and the kinds of decisionmaking that are required, 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 subject only to the explicit exceptions defined in the constitution such as the senate power to ratify treatments. A related and third aspect of executive power is the power to address accident circumstances demand action to protect the wellbeing of the nation on which the law is either silent or inadequate such as dealing with natural disasters or plays. This residual power make 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 theexecutive 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, for example the removal power. One of the more amusing aspects of modern progressive polemic is there breathless attacks on the unitary executivetheory. They portray this as some newfangled hearing to justify executive powers of sweeping and unfetteredscope. I think some of you may have seen that horrible movie vice about Vice President dick cheney and theres this scene where the young dick cheney, by jan i think you may have been 36 and he was chief of staff at the white house, he goes intimate the young nina scalia at the office of Legal Counsel and they talk about this new nefarious. That will allow them to take over the world and its called the unitary executive theory area and some of you may recall when i was up for confirmation all the Democratic Senators saying how concerned they were about my adherence to the unitary executive theory. In reality the idea of the unitary executive does not go so much to the of president ial power, its 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 is not a theory. Its a description of what the framers did an article to area and after you decide to establish an executive unction that independent of the legislature, naturally the next question is going to perform that function . The framers had 2 potential models, they could insinuate checks and balances into the executive branch by conferring power on multiple individuals such as counsel and thus dividing the power within the executive. Alternatively, they could best executive power in case 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 cicely attributes necessary or energetic government and even jefferson was usually teen as less of a heart than hamilton on executive power was insistent that executive power be placed in single hands and he cited the american unitary executive as the signal feature that distinguished american success from francis failed republican experiment. The implications of the flamers decisions are obvious. If congress attempts to vest the power to execute the law in someone beyond the control of the president , it contributions 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 jousting with each other as each threatened to encroach on the prerogatives of theothers. 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 or power. So let me turn now to how the executive is presently faring in theseinterbranch battles. Im concerned that the deck has become stacked against the executive and that since the mid60s theres been a steady driving down of the executive branch is 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 peoples branch, the legislative branch and the Judicial Branch, protecting liberty by imposing restrictions on executive. The premise is that the greatest danger of government becoming oppressive is from the executive and the prospect of executive access so theres this kneejerk tendency to see the legislative and Judicial Branches as the good guys protecting the people from a rapacious would be autocrats. That is the medias general presentation of separation of powers issues. This budget is is wrongheaded and atavistic. It comes out of the english waiting view of politics, and english constitutional experience where political evolution was precisely that. You started out with a cane having all the cards. He holds all power including legislative and judicial and political evolution involve a process by which the legislative power gradually over hundreds of years rain in mccain and extracted and established its own powers as well as the powers of the judiciary. Certainly a watershed in this evolution was the glorious revolutionof 1689. But by 1787 we had the exact opposite model in the United States. The founders greatly admired how the british constitution and given rise to principles of balanced government but they felt that the british constitution and achieve 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 way executive. It already had built into it the limitations that way doctrine had been aspired to for centuries. It did not have the power to tax and spend. It was subject to thewrit of abs corpus. It was bound by due process and enforcing the law against members of the body politic and 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 wings obsessive focus on the dangers of monarch all rule lost relevance. This fundamental shift in view was reflected in the Convention Debates over the new frame ofgovernment. Their concerns were very different than those that weighed on the ways 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 the branches especially the political branches share powers. The idea 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 in one expands its role of it within that sphere. Whenever i see a Court Opinion that uses the word share i want to run inthe other direction. It reminds me theres a kid as my grandchilds preschool who as soon as my grandchild is playing with a toy reaches over and says share . Share . This must be thinking obscures what it means to say that powers are shared under theconstitution. The constitution generally assigns on powers to each of the branches and defined areas, thus the legislative power is granted in the constitution, whatever the power the legislative power is in the constitution is grantedto congress. At the same time the constitution is 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. Executive does not get to interfere in the legislative power in a broader sense than that 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 authorities x. Unfortunately, just in the past few years, we have seen these conflicts. Take on an entirely new character. Immediately after President Trump won election, the opponents and inaugurated with the cold 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 war. It obviously connotes, and obviously connotes that the government has brought legitimate. This is the very dangerous and indeed incendiary notion to import into the politics of a democratic republic. Cut back [applause] what it means is that instead of viewing themselves as the loyal opposition is opposing parties have done in this country for over 200 years, 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 sentence unprecedented views of the advice and consent process. And the senators of course are free to exercise the power to project what it deems to be unqualified nominees. But the 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. [applause] that is precisely with the Senate Minority has done from President Trump news very first day in office. As of september of this year, the senate has been forced to invoke culture on 236 trump nominees and each of those representing its own massive consumption of legislative time net only to delay the inevitable confirmation. Many times was culture invoked on nominees during president obama News Administration. Seventeen over eight years. And how about the second president bushs first term, four times. It is reasonable to wonder whether a future president will actually be able to forum a functioning administration if his or her party does not hold the senate. Now congress in recent years has largely advocated its core function of legislating on the most pressing issues facing the nation. They either decline the legislate on major questions or if they do, but the most difficult and Critical Issues by making broad allegations to a modern Administrative State that they increasingly see to insulate prime president ial control. This phenomenon first arose as we all know in the wake of the Great Depression as congress created a number of socalled independent agencies and house them at least nominally in the executive branch. More recently, the not print act creation of the copd, a single headed independent agency that functions like a Junior Varsity president s for economic regulation, is just one of many examples. Congress is effectively withdraw from the business of legislating and lose it with a lot of things on his hand. [laughter] in pursuit, this choice of how to pursue or what to do with all of this time, they have decided especially the opposition party, to drown the executive branch with oversight demands for testimony and documents. I dont deny the congress has some implied authority to conduct oversight as an incident which legislative power. The sheer volume what we see today in the pursuit of scores of parallel investigations to an avalanche of subpoenas, is plainly designed to incapacitate the executive branch and indeed is parroted as such. Because of this constant harassment are real. For example we all understand the Confidential Communications of private and internal deliberative process are essential to all of our branches of government to properly function. Congress and the judiciary know this woa as both have taken great pains to shield their own internal communications from public inspection. There is no foi, foia, foia, congress and of course. The congress has happily created a regime that allows the public to see whatever documents it wants from the executive branch at the same time an individual congressional committees spend their days trying to publicize the executive internal deliberations. That process cannot function properly if it is public nor is it productive to have our government devoting in organist 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. Executive branch and the Supreme Court, have long recognized the need for confidence and the need for confidentiality and the executive branch necessarily means that it some communications 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 of 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 costly accused this administration of shredding constitutional norms and waging a war on the rule of law. Of course there is no such thing or substance to these flames. When i asked my friends on the other side, what exactly are you referring to i usually get stairs and sputtering about for the traveler or some such thing. The fact is that while the president has certainly thrown out the traditional beltway playbook, [applause] he was upfront about what he was going to do and the people decided they wanted him to serve as president. [applause] but what i am about now, our fundamental constitutional precepts. The fact is that this administrations policy actions and his 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. [applause] [applause] indeed measures undertaken by this administration seem a bit time. When compared to some of these unprecedented steps taken by the obama administrations aggressive exercise of executive power and i see that as someone who admires muscular executive. Back the fact of the matter is that in waging a scorched dirt and no old bar war of resistance against this administration it is the lift that is engaged in the systematic shredding of norms and undermining the rule of the law [applause] [background sounds] this highlights basic disadvantage that conservatives have had in contesting the political issues of the day. Goes back to the beginning of the republic. It was averted to buy that old curmudgeonly federalist dreams and several of his essays during the early republic and it paraphrased. Any agent socalled progressives, trait politics is the religion. Their holy mission is to use the coaster 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 deific, and. Theyre wheeling to use any means necessary to gain momentary advantage in achieving their end. Regardless of the collateral consequences in the systemic implications. Never ask whether the action they take, could be justified as a juvenile rule of conduct equally applicable to all sides. What would we say if the shoe were on the other foot. We hear them irresponsibly tabling proposals to do away with the Electoral College or to pack the courts. Shredding constitutional norms. [applause] on then as they do not see an earthly paradise. We are interested in preserving the long run the proper balance of freedom and order necessary for Healthy Development of natural Civil Society and individual Human Flourishing and this means that we naturally test the propriety and wisdom of action on a rule of law standard. In the essence of that standard is to ask, with the overall impact on society over the long or what would be the impact of society over the long run, if the action we are taking or the principal we are applying in a given circumstance was universalized. That is would be good for society as a whole over the long run if this was done in laws like circumstances. That is what rule of law is about. And that is inherent in the conservative project. [applause] mature now than when i believe its been the prime source of the erosion and separation of powers and principles generally. And the executive branches of the authorities and i am speaking of the Judicial Branch in recent years the judiciary has been steadily encroaching on executive responsibilities in the way that is 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 the executive thus preempting the political process which the framers conceived of as the primary check on interbranch rivalry and second to the judiciary has served the president ial authority for itself either by on the rubric of review substituting its judgment for the executive in areas committed to the president discretion or by assuming direct control over rounds of decisionmaking that hereto for, having considered at the core of president ial power. The framers did not envision that the course of play the brawl of arbiter trip disputes for the political branches. As madison explained in federal 51, the Great Security of the gradual concentration of powers, in the same department consistent in giving to those who administer each department the necessary constitutional means and motives to resist encroachments of the others. Admission will be made to counteract ambition by giving each the congress and the presidency the tools and defend off the encroachment of the others, the framers believe this would of course compromise and political accommodation. The constitutional means to resist encroachment the matters described takes many forms as they observed the constitution gives the congress and the president many clubs with which to beat each other. Conspicuously absent from the liz, is running for the courts to have them resolve the disputes. An omission makes sense. Judiciary cohorts to pronounce a conclusive resolution, the constitutional disputes between the political branches, and does not act. Not as a coequal. If the political branches believe the course will resolve the constitutional disputes, they have no incentive to debate their differences through democratic process with input and accountability to the people and they wont 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 that went out resort to the courts. In any if it, the prospect that the courts can meaningfully resolve interbranch disputes with the meaning of the condition that it is mostly a false promise. How is the court supposed to decide for example whether Congress News power to collect information in pursuit of his legislative function overrides the president s power to receive confidential advice and the pursuit of his executive function. Nothing in the constitution provides a manageable standard for resolving such a question. And thus no surprise to the course and produced amorphous unpredictable balancing counterparts, with the court news holding and the converse dented quote, disrupt the proper balance between the coordinate branches by preventing the executive branch from accomplishing is constitutionally inside for site functions. Apart from this, there are overzealous of their interbranch disputes, the courts have increasingly engaged directly in the use of patient of president ial decisionmaking. One way courts have effectively done this is by pipe expanding most of the scope and the intensity of judicial review. In recent years, we have lost sight of the fact that many critical decisions in her life, are not amenable to the judicial decisionmaking. They cannot be reduced to tidy standards and specific quantum news of proof, in an adversarial process. They require what we used to call credential judgment. And that our decisions frequently have to be made promptly and incomplete and uncertain information and necessarily involve the way of a wide range of competing risks and making predictions about the future. Such decisions frequently call into play the socalled precautionary principle. And this is the principal that when a decisionmaker is accountable, for discharging a certain obligation such as protecting the public security, it is better when assessing imperfect information to be wrong and save and wrong sorry. It was wasnt woa recognized in such matters were largely unreviewable and that the courts should not be substituting their judgments for the potential judgments raised by the accountable executive officials. In this public now seems to of been on the course. Course and a wheeling on the banner of judicial review, and substitute their judgment for the president on matters that only a few decades ago, would have been unimaginable. Such as matters directly involving National Security affairs. In the travel ban case is the good example. In the president as you all know, made his decision on the explicit legislative liz of authority and in blackandwhite, that he had the authority as well as his long recognized constitutional National Security brawl. To temporarily suspend entry to aliens coming from halfdozen of countries, pending adoption of more effective bidding procedures. The common denominator of the initial countries selective was they were unquestionably of hubs of act terrorist activity which lacked functional central governments and responsible Law Enforcement and intelligence agencies that would assist us in identifying the security risks among their National Seeking to enter the United States. Despite the fact that there were clearly justifiable security grants for the measure, the District Court in hawaii and the ninth circuit, blocked this Public Safety measure for a year and a off, and the 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 grants. And that the course secondguessed since the beginning of the Trump Administration. The travel been case, highlights an especially troubling aspect of the recent tendency to expand judicial review. The Supreme Court is refused across a wide variety of context to inquire into this subjective motivation behind government action. To take the classic example of a Police Officer has probable cause to initiated a traffic stop, his objective motivations are irrelevant. Just last terms, the Supreme Court probably leaps Authority Flames that otherwise lawful redistricting, can violate the constitution if the legislators who drew the line for were actually motivated by political carson chip. What is true of Police Officers and jury managers is equally true of the president and Senior Executive officials. [applause] with very few exceptions, neither the constitution nor the administrative procedures act for any other relevant statute, calls for additional review of executive bonus. They apply only to executive action. Attempts by of course to act like ham with her psychiatrist, and attempting to discern an executive officials real motive, often after ordering invasive discovery, into the executive branch is privileged decisionmaking, have no more foundation in law dennis subpoena to a court to try to determine judges real motive and commissioning a decision. [applause] [applause] in the court news indulgence of such flames, even if they were ultimately rejected represents a serious intrusion on the president s constitutional prerogatives. The impact of these judicial intrusions on the executive responsibility have been hugely magnified by another judicial innovation. The nationwide injunction. First in 1963, and sparingly since then and until recently, these court orders enjoin enforcement of a policy are just two parties before the court, but nationwide. Against everybody. Nessus President Trump is taken office they have issued over 40 nationwide injunctions against the government. By comparison, during president obama news first two years District Courts and issued to nationwide and judges. Both of which immediately vacated by the ninth circuit. [laughter] is no exaggeration to see, the virtually every major policy of the Trump Administration has been subjected to immediate freezing by the lower courts. No im there no other president has been subjected to such sustained efforts to debilitate his agenda. Legal flies are myriad, and just to summarize briefly, they have no foundation in the article three jurisdiction or traditional equitable powers of the course. They radically inflate the brawl of District Court judges allowing anyone of woa over 600 individuals to singlehandedly freeze a policy nationwide in the power that no single judge or justice, can accomplish. And they foreclosed percolation and reasonable debate among lower courts. Often requiring the Supreme Court to do legal issues in an emergency posture with limited reading. And then enable transparent Forum Shopping which talks Public Confidence in the integrity of the judiciary and the displays the settled mechanisms of aggregate litigation of genuinely nationwide flames such as rule 23 class actions. In a particular relevance nationwide injunctions also disrupt the political process. It is no better example than the court news handling of the rescission of daca. As you recall daca was a discretionary policy of enforcement for parents adopted by the obama administration. In the fifth circuit concluded with the closely related daca policy along with an expansion of the daca policy was unlawful. The Supreme Court affirmed that decision by an equally divided vote. Given the daca was discretionary, premised on the exercise of executive discretion, and that for justice is apparently but found the legally indistinguishable policy was unlawful, President TrumpNews Administration understandably decided to resend daca. Partly however the president couple that rescission in negotiations over legislation that would create a lawful and better brawl alternative as part of a broader compromise. And in the middle of those negotiations, and indeed in the very same day the president invited the cameras into the cabinet room, to broadcast his negotiations with a 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 sided achieved his preferred outcome to 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 its been almost his entire first term enforcing president obama news signature immigration policy. Even though the policy was entirely discretionary, and having the Supreme Court concluded that it was legally indistinguishable legally indistinguishable because he was unlawful. As i have a democratic system to mark. In my mind the most blatant and consequential use of patient executive power in our history, was played out during the administration of george w. Bush. When the Supreme Court in the series of cases set itself up as the ultimate arbiter superintendent of military decisions and parent in prosecuting the military conflict. Decisions that live at the very core of the president s discretion as commanderinchief. This use has climaxed to the course 2008 decision in romanian, they are the Supreme Court overturned hundreds of years of american and earlier british law and practice, which it always considered decisions as to whether it detained, foreign combatants to be purely military judgments and civilian judge had no power to review. The first time, the court ruled the foreign persons who have no connection with the United States other than being confronted by our military forces on the battlefield and Due Process Rights and thus the right to the court haleys corporis to change judicial review within 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 news activities when it is engaged in Armed Conflict with foreign enemies. This rides russia over a fundamental distinction what the new surgical to the constitutional and integral to the brawl played by the president in a system. In the preamble to just the governments are set establish work to security reasons. Two different security reasons. To secure domestic tranquility and provide for defense against external dangers. And they are two very different realms of government action. In a nutshell, the constitution with the government is using is Law Enforcement powers, domestically to discipline a member of the community for violation of law, then protecting the liberty of the American People require the weight sharply curtail the Government News power so that it does not exult, threaten the liberties of the American People. In the constitution in this arena deliberately sacrifices efficiency. And invest the accused with the rights that are essentially create a loophole Playing Field between the collective interest of the community and those of the individual. And it dilutes the Government News power by dividing it and turning in on itself the check. At each stage of the criminal justice process, the judiciary is expressly empowered to serve as a check and neutral arbiter. And 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 constitutional has not concerned with handicapping the government to preserve other values. In the constitution does not confer, writes on foreign enemies. Rather the constitution is designed to maximize the governments efficiency to achieve victory. Even at the cost of Collateral Damage that would be unacceptable in the domestic Law Enforcement realm. And the idea, the duke judiciary, acts as a neutral check on the political branches to protect foreign enemies for our government is insane. [applause] the impact of the podium has been extremely consequential. I see is because with his every day. The first time in american history, our armed forces are incapable of taking prisoners. We are now in a crazy position and if we identify a terrorist enemy on the battlefield, such as an isys bleat leader, we can kill them with a drone strike or any weapon. But if we capture them, the military is tied down in developing evidence for an adversarial process and was fed massive resources and interminable litigation as to whether there is a sufficient basis to capture this preserve. In fact the records are not wheeling to invade and muck about in this court area of president ial responsibilities. It illustrates how far the doctrine of separation of powers has been eroded. Nine this partisan edge, we should take special care not to allow passions of the moment to cause us to permanently disfigure the genius of our constitutional instruction. As we look back on the sweep of american history, in my view that has been the american presidency that is best fulfill the vision of the founders. It is brought to our republic dynamism and effectiveness and other democracies plainly lack. In every critical junction, or the country has faced a great challenge, whether it be our earliest years as a week nation country compared maneuvering, for survival in a world of far stronger nations. Whether it has been during a period of constantly news measured with the Louisiana Purchase and the acquisition of mexican territory that took us all of the way across the continent. Whether it be the civil war and the epic test of this nation. Our world war ii, the struggle against fascism. For the cold war, and the challenge of communism. In the struggle against Racial Discrimination and most recently, the fight against thomas fascism and international terrorism. Ill have to see, that is been the american presidency, and a step to the poor, and provided the leadership and 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 nations 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. [applause] [background sounds] [applause] [background sounds] thank you mr. Attorney general. We very much appreciate your remarks and we are going out we have reception for those who are registered for across the hall. And to some degree, and neck in the chinese room if we can clear out very quickly, that would be awful because i know they have a wedding scheduled in the hotel right after this. [laughter] thank you. [background sounds] many a Supreme Court heard oral argument to consider the legality of President Trump news decision to resend the deferred action for childhood rival program commonly referred to as stock up. You can hear the arguments tonight beginning at eight eastern cspan2 cspan2 News Washington journal, live every day with news and policy issues that have piqued you. Coming up saturday morning, Georgetown University law center professors susan lowe block, discusses the legal and constitutional accused surrounding appeasement. Rc spans washington journal life as seven Easter Saturday morning. Join the discussion. This weekend, but tb will feature three new nonfiction books. On saturday night at 11 eastern, Donald Trump Jr asked about his book triggered. On the tactics used by the political lift in his view, slanders and conservatives. And then sunday night and on eastern on afterwards, former Harvard Law School market talks about her book, which is law forgive. Shes interviewed by georgetown law passed on formal prosecutor paul butler. These people who said the sentences have these collateral on sequences of their crimes not allowed to vote in many places and not allowed to have a professional life or to keep the children. Not allowed to get housing in certain places. I say that enough is enough and we should find ways to acknowledge forgiveness. We are imperfect as human beings. The law isnt perfect. At 2 00 p. M. Eastern former human investor nikki haley with her book, with all due respect. Most rotini every weekend cspan2 two. Next week, the House Intelligence Committee and chair and shift, continue public impeachment inquiry hearings. Getting Tuesday Morning and 93, cspan2 three. Watch live testimony from jennifer williams. Eight to Vice President mike has an director for european affairs, the National SecurityCouncil Lieutenant colonel alexander goodman. In a two, ambassador kirk boger, the formal envoy to ukraine. In National Security white house a, tim morrison. On wednesday at 9 00 a. M. Eastern, testimony continues with u. S. Ambassador to the European Union according. And at 230, the beatty assistant secretary of defense for russian ukrainian and Eurasian Affairs laura uber and david hill, on secretary of state for political affairs. And on thursday, 9 00 a. M. Eastern, the committee will testimony from the on a hill, former National SecurityCouncil Senior director for youre up and russia. Russia first two public hearings in their entirety on her website cspan. Org. impeachment. There you will also find transfers of witness testimony and procedures for the hearings. As a point of interest feature that identify moments during the hearings indicated by a star in the timeline. In next week, watch live coverage of the house impeachment inquiry hearings on cspan2 three cspan. Org or listen live wherever you are, with the free cspan2 radio app