Im eugene meyer, president of this aside im delighted to walking of the 15th annual memorial lecture. This lecture darted as many of you shortly after 9 11 [inaudible] this lecture started as many of you know shortly after 9 11 can you hear better . Sorry . [applause] ted olson inaugural lecture reminded of what a means to be an american and how our legal tradition is a critical part of our identity as americans. That reminder remind is perhape crucial today. Both ted who is here today and barbara understood this connection. We want the series to remind lawyers of it so they foster legal principles that advance individual liberty and personal responsibility and the rule of law. Others lecturers have included Justice Scalia, chief justice roberts, ice president cheney, judges ken starr, robert bork, ray randall, edith jones, doug ginsburg, jeff sutton and then judge not justice neil gorsuch, also included former attorney general michael mr. Casey, from white as counsel don mcgahn, john allison and senators tom cotton in ben sasse. That brings us to todays lecture. It is my privilege to introduce for this years lecture the honorable william barr, attorney general of the United States. People serve in government from a wide variety of reasons in addition to performing valuable public service. Theres power. Theres a stepping stone to even higher office, or the prestige of having had the position and the honor one receive all serving the country in such an important role. But in the current case its really difficult to see how most of these selfserving and sends apply. The that still does is for performing a valuable public service. Indeed, much of his career has been spent performing executive session exact to such Service 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. [laughing] and is gw from georgetown, george washington. He clerked for the underrated judge Malcolm Wilke on u. S. Court of appeals for the d. C. Circuit. And back to Public Safety worked under president reagan on the domestic policy staff and 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 kirkley and ellis, and hes after his service as attorney general the first time he served as executive Vice President of general counsel a first gte and then verizon. He is one of only two black people in history of the country to serve the country twice as attorney general. Its my honor to present the 82nd attorney general of the United States, william barr. [applause] thank you. 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 been here, and its a particular honor for me to join all the very distinguished lawyers in this room, and thank you for the introduction but i am the 85th attorney general. [laughing] and chinese has come in very handy because i find that when you read the congressional enactments from right to left they make a lot more sense. [laughing] its an honor to be here this evening, and to deliver the 19th annual Barbara Olson memorial lecture. Ive had the privilege of being friends with ted since we first met in the reagan administration, when ted was head of the office of Legal Counsel and had the privilege of knowing barbara, and a great affection for her. I miss her religions, and its a real privilege for me to participate in this lecture as a way of honoring barbara. I was trying to figure out what would be an appropriate speech to give here at the the federat society, and i was having difficulty. So 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 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 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 their several weeks ago in the oval office when President Trump presented ed meese was a president ial medal of freedom. [applaus [applause] as President Trump aptally noted, over the course of his career, ed 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 judicial appointments. Thats true of his two outstanding appointments to the Supreme Court, Supreme Court justices neil gorsuch and brett kavanaugh. [applaus [applause] 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 judicial nominees to come, many of whom are also here this week. [laughte [laughter] i wanted to choose a topic this afternoon for this afternoons lecture that had an originalist angle and will like lie likely surprise to little that ive chosen to speak to the constitutional power. I deeply admire the 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, weve 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 what the framers had in mind in establishing an independent executive in article 2 of the constitution. The Grammar School civics class version of our revolution is that it was a rebellion against monarchical tyranny and in framing our constitution, one of the preoccupations, the main preoccupation 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 drivers seat. By the time of the revolution the patriots well understood at that their prime antagonist was an overweaning parliament. Indeed, british thinkers came to think of parliament as the very seat of sovereignty. During the revolutionary era, american thinkers who thought of inaugurating a form of government came to think of the executive component as a errand boy after supreme executive branch. And a multimember council was considered a creature of the legislature dependent upon and subserviant to that body and carrying out the legislative well, in the articles there was no of the executive power. Things changed by the Constitutional Convention of 18 the real miracle in philadelphia that summer was the creation of a strong executive independent of and coequal with the other branches of government. The concensus 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. Theyd also seen that after the revolution, too many states had adopted constitutions with weak executives, overly subordinate to the legislatures and states had proved 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 powers theorists such as montesque, and locke, they thought of executive power as a distinct species of executive 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 situation, but the framers understood that effective executive power meant more than this. It handled the sovereign functions such as the conduct of Foreign Relations and the prosecution of war, which by their very nature cannot be directed by a preexisting legal regime, but rather, demands speed, secrecy, unity of purpose and prudent judgment to meet contingency. They agreed that due to the very nature of the activities involved and the kinds of Decision Making 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 altogether, subject only to the explicit exceptions defined in the constitution, such as the senates 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 wellbeing of the nation, but on which the law is either silent or inadequate. Such as dealing with natural disasters or plagues, this residual power is the federate discussed by locke. And then necessary for the internal management of the executive these are the powers necessary for the president to power for the, including the powers to protect the independence of the executive branch and the confidentiality. Such are necessary such as the power of appointment and others are implied, implicit in the constitution, for example, the removal power. One of more amusing aspects of modern progressive polemic is their breathless attacks on the unity executive theory. Oh. [laughte [laughter]. [applaus [applause] this he portray this as some newfangled theory to justify executive power of sweeping and unfettered scope. I think some of you may have seen that horrible movie vice about vicepresident dick cheney. And he goes in to meet the young scalia and they talk about what will allow them to take over the world and its the, you know, unity executive theory. And you heard some concerned about my adherence to the, you know, unteary executive theory. Its not to the breadth, but goes to whatever the executive powers may be. Those powers must be exercised under the president s supervision. Its not new and its not a theory. Its a description of what the framers did in article 2. [applaus [applause] after deciding to establish an executive function thats independent of the legislature, naturally the next question is, who is 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 power within the executive. Alternatively they could vest executive power in a solitary individual and the framers quite explicitty and uniformly chose the latter model because they believed that vesting executive authority in one person would imbue the presidency with precisely the necessary attributes and jefferson 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, you know, unitary executive with the single feature, a success from frances failed republican experiment. The implications of the framers decision are obvious, it Congress Continues to execute the power, execute the law in someone beyond the power of the president , it controverts the framers clear intent to put that in a single power, 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 the others. They thought this was not only natural, but salutory and they provisioned each branch with the wherewithal to fight and to defend itself in these interbranch struggles for power. Let me turn now how the executive is presently faring in these interbranch battles. Im concerned that the deck has become stacked against the executive and that since the mid 60s theres been a steady grinding down of the executive branchs 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 the executive. The premise is that the greatest danger to the greatest danger of government becoming oppressive is from the executive and the prospect of executive excess. So that theres this knee jerk tendency to see the legislative and judicial branches as the good guys protecting the people from an rapacious autocrat, which is the separation of powers issues. This prejudice is wrongheaded and attaviktic, it comes out of where the 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 reined in the king and practiced and established its own powers as well as the powers of the judiciary. Certainly, a watershed in in 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 had given rise to principles of balanced government. But they felt that the british constitution 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 the whig had aspired to for centuries. It did not have the power to spend. And habeas corpus, and laws against the members body politic. It was elected for a limited term of office and it was elected by the nation pass a whole. Thats a remarkable democratic institution. The only figure elected by the nation as a whole and with the creation of the american presidency the whigs obsessive focus on the dangers of monar monarchical rule lost. And this was debates over the new frame of government. Their concerns were very different than those that weighed on the whigs of the 17th century. It wasnt that executive power was of so much concern to them, it was the danger of the legislative branch which they viewed as the most Dangerous Branch to liberty. As madison warned, the legislative department is everywhere extending the sphere of its activity and drawing all powers into its impetuous vortex and indeed, they viewed the presidency as a check on the legislative branch. The second contemporary way of thinking against the executive is noting that the constitution does not sharply allocate power between the branches, but that the political branches share powers. The idea at work here is that because two branches both have a role to play in a particular ar area, we should see them as sharing power in that area. Its not such a big deal in 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 remind me of my as a kid at my grandchilds preschool who as soon as my grandchild is playing with a toy, reaches over and says, share . [laughter] share . This must be thinking obscures to mean 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 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 have been responsible for encroaching on the president s constitutional authority. So let me first Say Something about the legislature. As ive 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 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 ap 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. [applaus [applause] 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 cripple by any means necessary a dually elected government. A prime example of this is the senates 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. [applaus [applause] yet, that is precisely what the Senate Minority has done from President Trumps very first day in office. As of september of this year, the senate has been forced to invoke cloture on 236 trump nomine nominees, massive amounts of time meant only to delay the inevitable nomination. How many times was cloture invoked on nominees during president Obamas Administration . 17 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 form a functioning administration if his or her party does not hold the senate. Now congress in recent years has largely abdicated its core function of legislating on the most pressing issues facing the nation. They either decline 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 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 housed them at least nominally in the executive branch. More recently the doddfrank acts creation of the cfpb, a singleheaded agency is functions like a Junior Varsity of regulation is just one of many examples. Congresss effective withdrawal from the business of legislating leaves it with a lot of time on its hands. And in the pursuit of this choice of how to pursue 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 dont deny that congress has some i am employed authority to conduct oversight as an incident to its legislative power, but the sheer volume of what we see today, the pursuit of scores of parallel investigations through an avalanche of subpoenas, is plainly designed to incapacitate the executive branch and indeed, is touted as such. The cost of this constant harassment are real. For example, we all understand that Confidential Communications and the private internal deliberative processes 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 public size 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 confidentiality in the executive branch necessarily means that 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 perspective executive branch equities, labeling such efforts obstruction of congress, and Holding Cabinet secretaries even the attorney general in contem contempt. One of the ironies of today is that those who oppose this president constantly accuse this administration of shedding constitutional norms and waging a war on the rule of law. Of course, there is no substance to these claims. When i asked 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, yes, while the president has certainly thrown out the traditional beltway playbook and punctilio, he was upfront about what he was going to do and the people decided they wanted him to serve as president. [applaus [applause] what im talking about now are constitutional precepts. And this administrations policy initiatives, including the travel ban have transgressed neither constitutional nor traditional norms and have been substantiated through the law and through the courts to vindication. [applaus [applause] indeed, measures undertaken by this administration seem a bit tame when compared to some of the unprecedented steps taken by the Obama Administrations 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 has engaged in the systemic shredding of norms and undermining the rule of law. [applaus [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 fisher ames in some of his essays in the early republic and i paraphrase. In any age the socalled 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 theyre virtues people pursuing a dieific end. Theyre using any means 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 is shredding constitutional norms . [applaus [applause] conservatives on the other hand do not seek is earthly paradise. Were interested in preserving over the longrun the proper balance of freedom and order necessary for the Healthy Development of natural Civil Society and individual human flourishing. And that 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 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, what would it be good for society as a whole over the long run if it was done in all like circumstances. Thats what rule of law is about and thats inherent in the conservative project. [applaus [applause] let me turn now to what i believe has been the prime source of the emotion 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 responsibility in a way that substantially undercut the function of the presidency and the courts have done this essentially in 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, the judiciary has usurped president ial 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 president ial 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 adminster each department the necessary constitutional means and personal motives to resist encroachments of the others. Ambition will be made to counter act admission, 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 storms as Justice Scalia observed the constitution gives congress and the president many clubs with which to beat each oth other. Conspicuously absent from the list is running to the courts to have them resolve the disputes and that omission takes sense. When the judiciary to pronounce a conclusive revolution to constitutional disputes between the political branches, it does not act as a coequal. And if the political branches believe the courts will resolve their constitutional disputes. They have no incentives 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 meaningful resolve interbranch disputes about the meaning of the constitution is mostly a false promise. How is the court supposed to decide, for example, whether congresss 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 produced a morphous unpredictable test, the congress did not disrupt the proper balance between the coordinate branches by preventing the executive branch from accomplishing its constitutionally assigned function. Apart from this, their overzealous role in interbranch disputes, the courts have increasingly engaged directly in the user patient Decision Making. One way courts have effectively doing this, by expanding both the scope and intensity of judicial review. In recent years 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. Theyre used to what we call prudential judgments. They are decisions made promptly, 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 socalled precautionary principle and this is the principle that when a Decision Maker is accountable for discharging a certain obligation, such as protecting the publics security, it is better when assessing imperfect information to be wrong and safe than wrong and sorry. It was once wellrecognized 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 ago would have been unimaginable such as foreign affairs. The travel ban is a good example. There the president as you know made a decision under an explicit grant of authority, in black and white that he had the authority, as well as his long recognized National Security role to temporarily suspend entry of aliens coming from a half dozen country pending adoption of more effective vetting procedures. The common denominator of the initial country selected was that they were unquestionable hubs of terrorist activities, which lacked functional central governments and responsible Law Enforcement and intelligence agencies that could assist us in identifying the security risks among their nationals seeking to enter the United States. The fact that there were clearly justifiable security grounds for the measure, the District Court in hawaii and the 9th 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 the recent tendency to expand judicial review. The Supreme Court has traditionally refused across a wide variety of contexts to inquire into the subjective motivation behind 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 legislatures that true the lines were motivated by political partisanship. What is true of Police Officers and gerrymanderers is equally true of the president and Senior Executive officials. [applause] with very few exceptions, neither the constitution nor the administrative procedures act nor any other relevant statue calls for xjudicial review of executive motives, they apply only to executive action. Attempts by courts to act like amateur psychiatrists, attempting to acertain an executives real motive often after ordering invasive discovery into the executive branches privileged Decision Making process, have no more foundation in law than a subpoena to a court to try to determine a judges real motive in issuing a decision. [applaus [applause] the courts indulgence of such claims, even if they are ultimately rejected, represents a serious intrusion on the president s constitutional prerogatives. The impact of these judicial intrusions on the executive responsibility have been 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 comparison, during president obamas first two years, District Courts had issued two nationwide injunctions. Both of way immediately vacated by the 9th circuit. It is no exaggeration to say that virtually every major policy of the Trump Administration has been subjected to immediate freezing by the lower courts. No other president has been subjected to such sustained efforts to debilitate his agenda. The legal flaws underlying nationwide injunctions are myriad and just to summarize briefly, they have no article jurisdiction or equitiable powers of the court and radically inflate the role of district judges, well over 600 individuals to singlehandedly freeze a policy nationwide, a power that no single abelt judge or justice can accomplish. They percolate debate by lower court often having the Supreme Court decide complicated legal issues in an imagine posture with limited briefing and they enable transparent Forum Shopping which Public Confidence in the judiciary. They displaced the settled mechanisms of aggregate litigation of genuinely claims such as rule 23 class action. Of particular relevance to my topic tonight, nationwide injunctions also disrupt the political process. Theres no better example than the courts handling of the rescission of daca. As you recall, daca was a discretionary policy of enforcement for parents adopted by the Obama Administration and the 5th circuit concluded, the closely related dapa policy along with the daca, the Supreme Court with that by an equally divided vote. Different that daca was discretionary on the executive discretion and that four justices apparently thought a legally indistinguishable policy was unlawful, President Trumps 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 enjoined 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 of his entire first term enforcing president obamas 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. Thats not how the democratic system should work. Now, to my mind, the most blatant and consequential use for Patient 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 commanderinchief. This user with the 2008 decision, there the Supreme Court overturned hundreds of years of american and earlier british law and practice which considered decisions as to whether 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, had 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 carried them over and superimposed them on the nations activities when it is engaged in Armed Conflict with foreign enemies. This rides roughshod over an integral to the constitution and integral to the role played by the president in our system. As the preamble suggests, governments are established for two security reasons, two different security reasons, to secure domestic tranquillity and to provide defense against external dangers and theyre 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 in the community for a violation of law, then protecting the liberty of the American People requires that we sharply curtail the governments power so that it does not itself threaten the liberties of the American People, and thus, the constitution in in 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 governments 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 conifer rights 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. The idea that the judiciary acts as a neutral check on the political branches to protect foreign enemies from our government is insane. [applaus [applause] the impact has been extremely consequence. 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 sum mayorsummerly. But if we capture them, for an adversarial process, theres litigation whether there was a factor to capture this prison. That theyre able to muck about in this core area of 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 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 faced a great challenge, whether our earlier years as a nascent country battling rebellions and maneuvering for survival in a world of far stronger nations or whether its been during our period of continentalal expansion with the Louisiana Purchase and 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 islamic fascism and terrorism, one has to say its the american presidency that stepped to the fore and provided the leadership, consistency, energy and perseverance that allowed us to surmount these challenges. In so many areas its critical for our nation that we restore 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. [applaus [applause]. [applause]. Well, the u. S. Senate is about to gavel in. Lawmakers are planning to work on two judicial nominations for the u. S. Court of appeals for the 11th circuit. At now to live coverage of the u. S. Senate here on cspan2
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