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Attorney General Bill Barr: Intellectual Powerhouse of Conservatism

William Barr Federalist Society
We confess to having had some skepticism about the appointment of William Barr as Donald Trump’s Attorney General. Barr’s steady rise through the DC legal establishment, culminating with his appointment as Attorney General under President George W. Bush placed him high in the ranks of the Republican establishment, making us question his willingness to pursue the limited government constitutional conservative agenda.

However, much to our surprise and the benefit of the country Bill Barr has emerged as one of the few rational people left in establishment Washington DC and a strong and effective advocate of constitutional conservatism.

Barr’s remarks to the Law School and the de Nicola Center for Ethics and Culture at the University of Notre Dame delivered on October 11, 2019 should be used as the basis for a required course for every American college student.

And now Barr has followed up the Notre Dame speech with a tour de force on the damage Democrats and their allies in the media and courts have been wreaking on our country through their systemic sabotage of Trump administration.

During his remarks for the Federalist Society’s 19th Annual Barbara K. Olson Memorial Lecture* at the Federalist Society's 2019 National Lawyers Convention, Barr spelled out the damage the “resistance,” is doing to the country and the institution of the presidency, laying out the case that Democrats and the Far Left are attacking the very foundations of the Constitution.

You can watch the speech through this link and it is definitely worth it.

To set the tone we are going to share a lengthy quote from the middle of the speech:

In any age, the so-called progressives treat politics as their religion.  Their holy mission is to use the coercive power of the State to remake man and society in their own image, according to an abstract ideal of perfection.  Whatever means they use are therefore justified because, by definition, they are a virtuous people pursing a deific end.  They are willing to use any means necessary to gain momentary advantage in achieving their end, regardless of collateral consequences and the systemic implications.  They never ask whether the actions they take could be justified as a general rule of conduct, equally applicable to all sides.

Conservatives, on the other hand, do not seek an earthly paradise.  We are interested in preserving over the long run the proper balance of freedom and order necessary for healthy development of natural civil society and individual human flourishing.  This means that we naturally test the propriety and wisdom of action under a “rule of law” standard.  The essence of this standard is to ask what the overall impact on society over the long run if the action we are taking, or principle we are applying, in a given circumstance was universalized – that is, would it be good for society over the long haul if this was done in all like circumstances?

For these reasons, conservatives tend to have more scruple over their political tactics and rarely feel that the ends justify the means.  And this is as it should be, but there is no getting around the fact that this puts conservatives at a disadvantage when facing progressive holy war, especially when doing so under the weight of a hyper-partisan media.

Now that you have a sense of where Bill Barr is coming from, we can start at the start and give some highlights of the Attorney General’s analysis of the damage the Leftist “Resistance” is doing to the country.

“I deeply admire the American presidency as a political and constitutional institution,” he began. “Unfortunately, over the past several decades, we have seen a steady encroachment on executive authority by the other branches of the government.”

“Immediately after President Trump won the election, opponents inaugurated what they called the ‘resistance’ and they rallied around an explicit strategy of using every tool and maneuver to sabotage the functioning of the executive branch and his administration.”

Barr described a "resistance" that began as soon as Trump was elected. "The fact of the matter is that in waging a scorched-earth, no holds barred war of resistance against this administration, it is the left that is engaged in the systematic shredding of norms and undermining the rule of law," he said.

“The cost of this constant harassment is real,” he continued according to the FOX News reporting on the speech.

Barr likened the language used by Trump’s opponents to that of groups who attempt to overthrow an illegitimate government.

“Now resistance is the language used to describe insurgency against rule imposed by an occupying military power. It obviously connotes that the government is not legitimate. This is a very dangerous and, indeed, incendiary notation to import into the politics of a democratic republic.”

He continued: “They essentially see themselves engaged in a war to cripple, by any means necessary, a duly elected government.”

Barr observed that while Trump’s presidency falls outside the norm of previous administrations, he was elected with the public fully aware of this.

“The fact is, that, 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 that he was going to serve as president."

General Barr’s remarks that received little media attention are also worthy of further promotion by conservatives, and that is his analysis of how Congress has abdicated its core constitutional functions, while at the same time encroaching upon the core constitutional powers and responsibilities of the President.

"One of the more amusing aspects of modern progressive polemic is their breathless attacks on the 'unitary executive theory.' They portray this as some new-fangled 'theory' to justify Executive power of sweeping scope. In reality, the idea of the unitary executive does not go so much to the breadth of Presidential power. Rather, the idea is that, whatever the Executive powers may be, they must be exercised under the President's supervision," Barr said, according to the transcript published by the Justice Department.

"This is not 'new,' and it is not a 'theory.' It is a description of what the Framers unquestionably did in Article II of the Constitution," observed the Attorney General.

Said the Attorney General:

Congress has in recent years also largely abdicated its core function of legislating on the most pressing issues facing the national government.  They either decline to legislate on major questions or, if they do, punt the most difficult and critical issues by making broad delegations to a modern administrative state that they increasingly seek to insulate from Presidential control.  This phenomenon first arose in the wake of the Great Depression, as Congress created a number of so-called “independent agencies” and housed them, at least nominally, in the Executive Branch.  More recently, the Dodd-Frank Act’s creation of the Consumer Financial Protection Branch, a single-headed independent agency that functions like a junior varsity President for economic regulation, is just one of many examples.

Of course, Congress’s effective withdrawal from the business of legislating leaves it with a lot of time for other pursuits.  And the pursuit of choice, particularly for the opposition party, has been to drown the Executive Branch with “oversight” demands for testimony and documents.  I do not deny that Congress has some implied authority to conduct oversight as an incident to its Legislative Power.  But the sheer volume of what we see today – the pursuit of scores of parallel “investigations” through an avalanche of subpoenas – is plainly designed to incapacitate the Executive Branch, and indeed is touted as such.   

Barr also criticized the hyper-partisan federal courts, which have frequently issued injunctions that acted to freeze legitimate Trump policies, such as the travel ban that restricted entry into the U.S. for citizens of certain countries.

"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," Barr stated. "No other president has been subjected to such sustained efforts to debilitate his agenda."

The Attorney General also rightly criticized the courts for considering the President's motives when they assess the legality of a policy, saying this amounts to "attempts by courts to act like amateur psychiatrists."

We think one part of Attorney General Barr provided conservatives with one of the best and most well-reasoned critiques of judicial overreach available and we urge CHQ readers and friends to share it widely:

In recent years, we have lost sight of the fact that many critical decisions in life are not amenable to the model of judicial decision-making.  They cannot be reduced to tidy evidentiary standards and specific quantums of proof in an adversarial process.  They require what we used to call prudential judgment.  They are decisions that frequently have to be made promptly, on incomplete and uncertain information and necessarily involve weighing a wide range of competing risks and making predictions about the future.  Such decisions frequently call into play the “precautionary principle.”  This is the principle that when a decision maker is accountable for discharging a certain obligation – such as protecting the public’s safety – it is better, when assessing imperfect information, to be wrong and safe, than wrong and sorry.

It was once well recognized that such matters were largely unreviewable and that the courts should not be substituting their judgments for the prudential judgments reached by the accountable Executive officials.  This outlook now seems to have gone by the boards.  Courts are now willing, under the banner of judicial review, to substitute their judgment for the President’s on matters that only a few decades ago would have been unimaginable – such as matters involving national security or foreign affairs.

The Travel Ban case is a good example.  There the President made a decision under an explicit legislative grant of authority, as well has his Constitutional national security role, to temporarily suspend entry to aliens coming from a half dozen countries pending adoption of more effective vetting processes.  The common denominator of the initial countries selected was that they were unquestionable hubs of terrorism activity, which lacked functional central government’s and responsible law enforcement and intelligence services that could assist us in identifying security risks among their nationals seeking entry.  Despite the fact there were clearly justifiable security grounds for the measure, the district court in Hawaii and the Ninth Circuit blocked this public-safety measure for a year and half on the theory that the President’s motive for the order was religious bias against Muslims.  This was just the first of many immigration measures based on good and sufficient security grounds that the courts have second guessed since the beginning of the Trump Administration.

And Later:

The impact of these judicial intrusions on Executive responsibility have been hugely magnified by another judicial innovation – the nationwide injunction.  First used in 1963, and sparely since then until recently, these court orders enjoin enforcement of a policy not just against the parties to a case, but against everyone.  Since President Trump took office, district courts have issued over 40 nationwide injunctions against the government.  By comparison, during President Obama’s first two years, district courts issued a total of two nationwide injunctions against the government.  Both were vacated by the Ninth Circuit.

It is no exaggeration to say that virtually every major policy of the Trump Administration has been subjected to immediate freezing by the lower courts.  No other President has been subjected to such sustained efforts to debilitate his policy agenda.

The legal flaws underlying nationwide injunctions are myriad.  Just to summarize briefly, nationwide injunctions have no foundation in courts’ Article III jurisdiction or traditional equitable powers; they radically inflate the role of district judges, allowing any one of more than 600 individuals to singlehandedly freeze a policy nationwide, a power that no single appellate judge or Justice can accomplish; they foreclose percolation and reasoned debate among lower courts, often requiring the Supreme Court to decide complex legal issues in an emergency posture with limited briefing; they enable transparent forum shopping, which saps public confidence in the integrity of the judiciary; and they displace the settled mechanisms for aggregate litigation of genuinely nationwide claims, such as Rule 23 class actions.

Of particular relevance to my topic tonight, nationwide injunctions also disrupt the political process.  There is no better example than the courts’ handling of the rescission of DACA.  As you recall, DACA was a discretionary policy of enforcement forbearance adopted by President Obama’s administration.  The Fifth Circuit concluded that the closely related DAPA policy (along with an expansion of DACA) was unlawful, and the Supreme Court affirmed that decision by an equally divided vote.  Given that DACA was discretionary — and that four Justices apparently thought a legally indistinguishable policy was unlawful —President Trump’s administration understandably decided to rescind DACA.

Importantly, however, the President coupled that rescission with negotiations over legislation that would create a lawful and better alternative as part of a broader immigration compromise.  In the middle of those negotiations — indeed, on the same day the President invited cameras into the Cabinet Room to broadcast his negotiations with bipartisan leaders from both Houses of Congress — a district judge in the Northern District of California enjoined the rescission of DACA nationwide.  Unsurprisingly, the negotiations over immigration legislation collapsed after one side achieved its preferred outcome through judicial means.  A humanitarian crisis at the southern border ensued.  And just this week, the Supreme Court finally heard argument on the legality of the DACA rescission.  The Court will not likely decide the case until next summer, meaning that President Trump will have spent almost his entire first term enforcing President Obama’s signature immigration policy, even though that policy is discretionary and half the Supreme Court concluded that a legally indistinguishable policy was unlawful.  That is not how our democratic system is supposed to work.

There is much more in Attorney General Barr’s remarks to the Federalist Society that conservatives can use in the war of ideas with today’s Far Left, but the above are some of the key points that we hope will tease you into reading the entire speech and keeping it handy for future reference for letters to the editor, social media posts, calls to talk radio and other opportunities to persuade the public to our view of constitutional liberty under God’s laws.

*The Barbara K. Olson Memorial Lecture memorializes our friend Barbara K. Olson, conservative lawyer and political commentator who was killed on American Airlines Flight 77 in the September 11, 2001 Muslim terrorist attack on the Pentagon.

George Rasley is editor of Richard Viguerie's ConservativeHQ.com and is a veteran of over 300 political campaigns. A member of American MENSA, he served on the staff of Vice President Dan Quayle, as Director of Policy and Communication for former Congressman Adam Putnam (FL-12) then Vice Chairman of the Oversight and Government Reform Committee's Subcommittee on National Security and Foreign Affairs, and as spokesman for Rep. Mac Thornberry former Chairman of the House Armed Services Committee.

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