On Friday, Attorney General William P. Barr spoke on originalism and the erosion of the separation of powers at the Federalist Society’s 2019 National Lawyers Convention in Washington. “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,” he warned. An excerpt of speech follows and you can read the entire speech here.

As I have said, the Framers fully expected intense pulling and hauling between the Congress and the president.  Unfortunately, just in the past few years, we have seen 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 available to sabotage the functioning of his Administration.  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 – indeed incendiary – notion to import into the politics of a democratic republic.  What it means is that, instead of viewing themselves as the “loyal opposition,” as opposing parties have done in the past, 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 Senate’s unprecedented abuse of the advice-and-consent process.  The Senate is free to exercise that power to reject 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 government.

Yet that is precisely what the Senate minority has done from his very first days in office.  As of September of this year, the Senate had been forced to invoke cloture on 236 Trump nominees — each of those representing its own massive consumption of legislative time meant only to delay an inevitable confirmation. 

How many times was cloture invoked on nominees during President Obama’s first term?  17 times.  The second President Bush’s first term?  Four times.  It is reasonable to wonder whether a future president will actually be able to form a functioning administration if his or her party does not hold the Senate. 

Congress 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.

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 the undermining of the rule of law. 

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.  

The costs of this constant harassment are real.  For example, we all understand that confidential communications and a private, internal deliberative process are essential for 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 FOIA for Congress or the courts. 

Yet Congress has happily created a regime that allows the public to seek whatever documents it wants from the executive branch at the same time that individual congressional committees spend their days trying to publicize the executive’s internal decisional process.  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 executive branch decision-making necessarily means that some communications must remain off limits to Congress and the public.   There was a time when Congress respected this important principle as well.  But today, Congress is increasingly quick to dismiss good-faith attempts to protect executive branch equities, labeling such efforts “obstruction of Congress” and holding Cabinet secretaries in contempt.

One of the ironies of today is that those who oppose this president constantly accuse this administration of “shredding” constitutional norms and waging a war on the rule of law.  When I ask my friends on the other side, what exactly are you referring to?  I get vacuous stares, followed by sputtering about the Travel Ban or some such thing.  While the president has certainly thrown out the traditional Beltway playbook, he was upfront about that beforehand, and the people voted for him.

What I am talking about today are fundamental constitutional precepts.  The fact is that this administration’s policy initiatives and proposed rules, including the Travel Ban, have transgressed neither constitutional, nor traditional, norms, and have been amply supported by the law and patiently litigated through the court system to vindication.

Indeed, measures undertaken by this administration seem a bit tame when compared to some of the unprecedented steps taken by the Obama Administration’s aggressive exercises of executive power – such as, under its DACA program, refusing to enforce broad swathes of immigration law.

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 the undermining of the rule of law.  This highlights a basic disadvantage that conservatives have always had in contesting the political issues of the day.  It was adverted to by the old, curmudgeonly Federalist, Fisher Ames, in an essay during the early years of the Republic. 

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 far, especially when doing so under the weight of a hyper-partisan media.

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