AG Bill Barr Speaks About The Damage to Our Nation From The “Resistance”…

A rather lengthy speech by U.S. Attorney General Bill Barr to the Federalist Society is getting some increased attention today for the specific focus on how the executive branch has been weakened over the past several decades.

More specifically, AG Barr discusses how, in the Trump-era, the resistance movement has abdicated their legislative power and responsibility in favor of a politically motivated intent to harm the constitutional executive power.  [Video and Transcript below]


[Transcript] – Good Evening. Thank you all for being here. And thank you to Gene [Meyer] for your kind introduction.

It is an honor to be here this evening delivering the 19th Annual Barbara K. Olson Memorial Lecture. I had the privilege of knowing Barbara and had deep affection for her. I miss her brilliance and ebullient spirit. It is a privilege for me to participate in this series, which honors her.

The theme for this year’s Annual Convention is “Originalism,” which is a fitting choice — though, dare I say, a somewhat “unoriginal” one for the Federalist Society. I say that because the Federalist Society has played an historic role in taking originalism “mainstream.” While other organizations have contributed to the cause, 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 a cadre of others who were firmly committed to an originalist approach to the law. I was honored to work with Ed in the Reagan White House and be there several weeks ago when President Trump presented him with the Presidential Medal of Freedom. As the President aptly noted, over the course of his career, Ed Meese has been among the Nation’s “most eloquent champions for following the Constitution as written.”

I am also proud to serve as the Attorney General under President Trump, who has taken up that torch in his judicial appointments. That is true of his two outstanding appointments to the Supreme Court, Justices Neil Gorsuch and Brett Kavanaugh; of the many superb court of 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.


I wanted to choose a topic for this afternoon’s lecture that had an originalist angle. It will likely come as little surprise to this group that I have chosen to speak about the Constitution’s approach to executive power.

I deeply admire the American 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, we have seen steady encroachment on Presidential authority by the other branches of government. This process I think has substantially weakened the functioning of the Executive Branch, to the detriment of the Nation. This evening, 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 II of the Constitution.

The grammar school civics class version of our Revolution is that it was a rebellion against monarchial tyranny, and that, in framing our Constitution, one of the main preoccupations of the Founders 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 driver’s seat. By the time of the American Revolution, the patriots well understood that their prime antagonist was an overweening Parliament. Indeed, British thinkers came to conceive of Parliament, rather than the people, as the seat of Sovereignty.

During the Revolutionary era, American thinkers who considered inaugurating a republican form of government tended to think of the Executive component as essentially an errand boy of a Supreme legislative branch. Often the Executive (sometimes constituted as a multi-member council) 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 separate from Congress.

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 coequal with, the other two 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 had almost been lost and was a bumbling enterprise because of the lack of strong Executive leadership. Under the Articles of Confederation, they had been mortified at the inability of the United States to protect itself against foreign impositions or to be taken seriously on the international stage. They had also seen that, after the Revolution, too many States had adopted constitutions with weak Executives overly subordinate to the Legislatures. Where this had been the case, state governments had proven incompetent and indeed tyrannical.

From these practical experiences, the Framers had come to appreciate that, to be successful, 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 counsels 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, ‘[F]or the prompt, clear, and consistent action so necessary in an Executive, unity of person is necessary….”

While there may 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– Polybius, Montesquieu, Locke – had, the Framers thought of Executive power as a distinct specie of power. To be sure, Executive power includes the responsibility for carrying into effect the laws passed by the Legislature – that is, applying the general rules to a particular situation. But the Framers understood that Executive power meant more than this.

It also entailed the power to handle essential sovereign functions – such as the conduct of foreign relations and the prosecution of war – which by their very nature cannot be directed by a pre-existing legal regime but rather demand speed, secrecy, unity of purpose, and prudent judgment to meet contingent circumstances. They agreed that – due to the very nature of the activities involved, and the kind of decision-making they require – 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 Senate’s 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 well-being of the Nation but on which the law is either silent or inadequate – such as dealing with a plague or natural disaster. This residual power to meet contingency is essentially the federative power discussed by Locke in his Second Treatise.

And, finally, there are the Executive’s powers of internal management. These are the powers necessary for the President to superintend and control the Executive function, including the powers necessary to protect the independence of the Executive branch and the confidentiality of its internal deliberations. Some of these powers are express in the Constitution, such as the Appointment power, and others are implicit, such as the Removal power.

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. 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.

After you decide to establish an Executive function independent of the Legislature, naturally the next question is, who will perform that function? The Framers had two potential models. They could insinuate “checks and balances” into the Executive branch itself by conferring Executive power on multiple individuals (a council) thus dividing the power. Alternatively, they could vest Executive power in a solitary individual. The Framers quite explicitly chose the latter model because they believed that vesting Executive authority in one person would imbue the Presidency with precisely the attributes necessary for energetic government.

Even Jefferson – usually 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 America’s unitary Executive as a signal feature that distinguished America’s success from France’s failed republican experiment.

The implications of the Framers’ decision are obvious. If Congress attempts to vest the power to execute the law in someone beyond the control of the President, it contravenes the Framers’ clear intent to vest that power in a single person, the President. So much for this supposedly nefarious theory of the unitary executive.

♦ 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 salutary, and they provisioned each branch with the wherewithal to fight and to defend itself in these interbranch struggles for power.

So let me turn now to how the Executive is presently faring in these interbranch battles. I am concerned that the deck has become stacked against the Executive. Since the mid-60s, there has been a steady grinding down of the Executive branch’s 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 that tend to operate to the disadvantage of the Executive.

The first is the notion that politics in a free republic is all about the Legislative and Judicial branches protecting liberty by imposing restrictions on the Executive. The premise is that the greatest danger of government becoming oppressive arises from the prospect of Executive excess. So, there is a knee-jerk tendency to see the Legislative and Judicial branches as the good guys protecting society from a rapacious would-be autocrat.

This prejudice is wrong-headed and atavistic. It comes out of the early English Whig view of politics and English constitutional experience, where political evolution was precisely that. You started out with a King who holds all the cards; he holds all the power, including Legislative and Judicial. Political evolution involved a process by which the Legislative power gradually, over hundreds of years, reigned in the King, and extracted and established its own powers, as well as those of the Judiciary. A watershed in this evolution was, of course, the Glorious Revolution in 1689.

But by 1787, we had the exact opposite model in the United States. The Founders greatly admired how the British constitution had given rise to the principles of a balanced government. But they felt that the British constitution had 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.

Part of their more perfect construction was a new kind of Executive. They created an office that was already the ideal Whig Executive. It already had built into it the limitations that Whig doctrine aspired to. It did not have the power to tax and spend; it was constrained by habeas corpus and by due process in enforcing the law against members of the body politic; it was elected for a limited term of office; and it was elected by the nation as whole. That is a remarkable democratic institution – the only figure elected by the Nation as a whole. With the creation of the American Presidency, the Whig’s obsessive focus on the dangers of monarchical rule lost relevance.

This fundamental shift in view was reflected in the Convention debates over the new frame of government. Their concerns were very different from those that weighed on 17th century English Whigs. It was not Executive power that was of so much concern to them; it was 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 power into its impetuous vortex.” And indeed, they viewed the Presidency as a check on the Legislative branch.

The second contemporary way of thinking that operates against the Executive is a notion that the Constitution does not sharply allocate powers among the three branches, but rather that the branches, especially the political branches, “share” powers. The idea at 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 such a big deal if one branch expands its role within that sphere at the expense of the other.

This mushy thinking obscures what it means to say that powers are shared under the Constitution. Constitution generally assigns broad powers to each of the branches in defined areas. Thus, the Legislative power granted in the Constitution is granted to the Congress. At the same time, the Constitution gives the Executive a specific power in the Legislative realm – the veto power. Thus, the Executive “shares” Legislative power only to the extent of the specific grant of veto power. The Executive does not get to interfere with the broader Legislative power assigned to the Congress.

In recent years, both the Legislative and Judicial branches have been responsible for encroaching on the Presidency’s constitutional authority. Let me first say something about the Legislature.

• 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.

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.

• Let me turn now to what I believe has been the prime source of the erosion of separation-of-power principles generally, and Executive Branch authority specifically. I am speaking of the Judicial Branch.

In recent years the Judiciary has been steadily encroaching on Executive responsibilities in a way that has 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 Executive, thus preempting the political process, which the Framers conceived as the primary check on interbranch rivalry. Second, the Judiciary has usurped Presidential authority for itself, either (a) by, under the rubric of “review,” substituting its judgment for the Executive’s in areas committed to the President’s discretion, or (b) by assuming direct control over realms of decision-making that heretofore have been considered at the core of Presidential 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 a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.” By giving each the Congress and the Presidency the tools to fend off the encroachments of the others, the Framers believed this would force compromise and political accommodation.

The “constitutional means” to “resist encroachment” that Madison described take various forms. As Justice Scalia observed, the Constitution gives Congress and the President many “clubs with which to beat” each other. Conspicuously absent from the list is running to the courts to resolve their disputes.

That omission makes sense. When the Judiciary purports to pronounce a conclusive resolution to constitutional disputes between the other two branches, it does not act as a co-equal. And, if the political branches believe the courts will resolve their constitutional disputes, they have no incentive to debate their differences through the democratic process — with input from and accountability to the people. And they will not even try to make the hard choices needed to forge 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 courts can meaningfully resolve interbranch disputes about the meaning of the Constitution is mostly a false promise. How is a court supposed to decide, for example, whether Congress’s power to collect information in pursuit of its legislative function overrides the President’s power to receive confidential advice in pursuit of his executive function? Nothing in the Constitution provides a manageable standard for resolving such a question. It is thus no surprise that the courts have produced amorphous, unpredictable balancing tests like the Court’s holding in Morrison v. Olson that Congress did not “disrupt the proper balance between the coordinate branches by preventing the Executive Branch from accomplishing its constitutionally assigned functions.”

Apart from their overzealous role in interbranch disputes, the courts have increasingly engaged directly in usurping Presidential decision-making authority for themselves. One way courts have effectively done this is by expanding both the scope and the intensity of judicial review.

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.

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 governmental 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 legislators who drew the lines were actually motivated by political partisanship.

What is true of police officers and gerrymanderers is equally true of the President and senior Executive officials. With very few exceptions, neither the Constitution, nor the Administrative Procedure Act or any other relevant statute, calls for judicial review of executive motive. They apply only to executive action. Attempts by courts to act like amateur psychiatrists attempting to discern an Executive official’s “real motive” — often after ordering invasive discovery into the Executive Branch’s privileged decision-making process — have no more foundation in the law than a subpoena to a court to try to determine a judge’s real motive for issuing its decision. And 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 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.

To my mind, the most blatant and consequential usurpation of Executive power in our history was played out during the Administration of President 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 Commander in Chief.

This usurpation climaxed with the Court’s 2008 decision in Boumediene. There, the Supreme Court overturned hundreds of years of American, and earlier British, law and practice, which had always considered decisions as to whether to 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 had no connection with the United States other than being confronted by our military on the battlefield had “due process” rights and thus have the right to habeas corpus to obtain judicial review of whether the military has a sufficient evidentiary basis to hold them.

In essence, the Court has taken the rules that govern our domestic criminal justice process and carried them over and superimposed them on the Nation’s activities when it is engaged in armed conflict with foreign enemies. This rides roughshod over a fundamental distinction that is 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 different security reasons – to secure domestic tranquility and to provide for defense against external dangers. These are 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 of the community for a violation of law, then protecting the liberty of the American people requires that we sharply curtail the government’s power so it does not itself threaten the liberties of the people. Thus, the Constitution in this arena deliberately sacrifices efficiency; invests the accused with rights that that essentially create a level playing field between the collective interests of community and those of the individual; and dilutes the government’s power by dividing it and turning it on itself as a check, at each stage 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 enemies. In this realm, the Constitution is concerned with one thing – preserving the freedom of our political community by destroying the external threat. Here, the Constitution is not concerned with handicapping the government to preserve other values. The Constitution does not confer “rights” on foreign enemies. Rather the Constitution is designed to maximize the government’s efficiency to achieve victory – even at the cost of “collateral damage” that would be unacceptable in the domestic realm. The idea that the judiciary acts as a neutral check on the political branches to protect foreign enemies from our government is insane.

The impact of Boumediene has been extremely consequential. For the first time in American history our armed forces is incapable of taking prisoners. We are now in a crazy position that, if we identify a terrorist enemy on the battlefield, such as ISIS, we can kill them with drone or any other weapon. But if we capture them and want to hold them at Guantanamo or in the United States, the military is tied down in developing evidence for an adversarial process and must spend resources in interminable litigation.

The fact that our courts are now willing to invade and muck about in these core areas of Presidential responsibility illustrates how far the doctrine of Separation of Powers has been eroded.

♦ 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, 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 have lacked.

At every critical juncture where the country has faced a great challenge –

– whether it be in our earliest years as the weak, nascent country combating regional rebellions, and maneuvering for survival in a world of far stronger nations;

– whether it be during our period of continental expansion, with the Louisiana Purchase, and the acquisition of Mexican territory;

– whether it be the Civil War, the epic test of the Nation;

– World War II and the struggle against Fascism;

– the Cold War and the challenge of Communism;

– the struggle against racial discrimination;

– and most recently, the fight against Islamist Fascism and international terrorism.

One would have to say that it has been the Presidency that has stepped to the fore and provided the leadership, consistency, energy and perseverance that allowed us to surmount the challenge and brought us success.

In so many areas, it is critical to our Nation’s future that we restore and preserve in their full vigor our Founding principles. Not the least of these is the Framers’ vision of a strong, independent Executive, chosen by the country as a whole.


This entry was posted in AG Bill Barr, Big Government, Big Stupid Government, Deep State, Legislation, media bias, Occupy Type Moonbats, President Trump, Uncategorized. Bookmark the permalink.

685 Responses to AG Bill Barr Speaks About The Damage to Our Nation From The “Resistance”…

  1. islandpalmtrees says:

    Has the Resistance as defined AG Barr, become the Seditious?

    November 15, 2019
    8:42 PM ET
    There’s A Big Fight Brewing In The Supreme Court Over Trump’s Financial Records And Presidential Immunity

    President Donald Trump is asking the Supreme Court to take up a pair of cases involving efforts to obtain his personal and professional financial information.
    The first case is a dispute between Trump and Manhattan DA Cyrus Vance, who is investigating so-called hush money payments to two women with whom the president allegedly had sexual encounters.

    The second, which is the more pressing of the two, involves a broad congressional subpoena to the president’s accounting firm. Trump asked the justices to immediately stay a lower court ruling upholding the validity of that subpoena.

    Liked by 2 people

  2. islandpalmtrees says:

    Have Schiff and Pelosi crossed the border?

    Sedition is overt conduct, such as speech and organization, that tends toward insurrection against the established order. Sedition often includes subversion of a constitution and incitement of discontent towards, or resistance against established authority. Sedition may include any commotion, though not aimed at direct and open violence against the laws. Seditious words in writing are seditious libel. A seditionist is one who engages in or promotes the interest of sedition.

    Liked by 8 people

  3. WES says:

    I was hoping to see a comment from Ristvan but didn’t.

    One action Barr has done was to remove Manford from solitary confinement. But I am having a hard time thinking of any other action initiated by Barr. Maybe there are more actions?

    SD is sticking to the facts which generally has proven to be wise. The facts are unclear at best. Things could go either way based upon the facts to date.

    Maybe it is necessary that the facts are unclear? Only an experienced lawyer would know.

    I am fairly sure Ristvan has said it can take some time like 6 months to 12 months to put together a good solid airtight case. One thing we can be sure of is anyone charged will be represented by the very best lawyers money can buy.

    My analogy of the “law” is it is just a collection, over time, of “man made” laws that has nothing to do with what is morally right since everyone’s definition of “morally right” is different!

    Another of my analogies of justice is comparing the past with the present.

    In the past, disputes between old wild west ranchers were supposedly settled by each rancher hiring a six gun and hoping their six gun was faster/dirtier than the other rancher’s six gun!

    Today if one has a dispute, supposedly one hires a lawyer! Again one hopes your lawyer knows the law better than the other guy’s lawyer! If the other guy’s lawyer is a real snake, then you hope your lawyer is a smarter snake!

    Yes, frustration is an issue! But becoming emotional sets one up to lose for sure! Keeping your emotions under control maintains any positions of strength one has. Hence SD’s “cold anger”.

    Is the slow wheel of justice even turning? We don’t know. The facts aren’t talking!

    Liked by 1 person

  4. ChampagneReady says:

    Bill Barr is definitely the democrat’s second worst nightmare. John Durham is their worst.

    I think when these two men get through with prosecutions and investigations, the Deep State and democrats are going to need therapy dogs.

    Liked by 5 people

    • If PDJT is not re-elected, whatever Barr and Durham accomplishes will be for naught. EVERYTHING will be buried, pardons issued, etc.

      Liked by 3 people

      • ChampagneReady says:

        “If” President Trump is not re-elected ?”

        Seriously ? The only computation necessary after the election will be how much bigger the electoral college victory was than the wipeout in 2016.

        Liked by 4 people

        • Sorry – I’m not that confident, although his re-election IS my wish.

          Liked by 1 person

          • trump20162024 says:

            I agree with you; the Trumpster’s reelection is far from assured. More urgently, his physical survival between now and the 2020 election is at serious risk. The same forces that disposed of JFK and attempted to do the same with Ronald Reagan are still at large in the deep sh8t state. The fact that Brennan, Comey, and Clapper are still prancing around freely while their Congressional allies misuse the impeachment power against our President should be a grave concern to all American patriots.

            Liked by 4 people

        • geokstr says:

          “…the electoral college…wipeout in 2016”???

          Looking at the 2016 results as some kind of HUUUGGE bigly victory for Trump is facetious and hubristic. The entire difference in the electoral college was based on winning three very purple swing states, Wisconsin, Michigan and Pennsylvania, rarely won by Republicans in recent times. He won those three states by a combined total of 77,000 votes out of 13,500,000, mostly because the Red Queen arrogantly ignored campaigning in those states because she felt they were a lock for the Marxists.

          In 2020, you can bet they will not be ignoring those states again, and will be ramping up their campaign spending in them exponentially. At the state and local levels, hey will also be changing election rules or passing new election laws, depending on their degree of control of either the election process and/or the elected bodies that will allow them to commit fraud on a more massive scale than they’ve already gotten away with in the past, by allowing felons to vote, making it easier for illegal aliens to register and vote, and allowing “ballot harvesting”, a process whereby they can go door-to-door, collecting and submitting ballots from Democrats only for up to a week after election day. This harvesting alone flipped 7 seats in California that were called for the Republicans by the networks on election night and then reversed a week later.

          As Instapundit says – “Don’t get cocky”.

          Liked by 2 people

          • ChampagneReady says:

            Do you know the Trump ground and social media organization that is now in place compared with 2016 ? And the numbers of new voters and volunteers that have signed up ? Plus the money coming into the campaign coffers compared to 2016 ?

            It will be a whopping electoral victory. The MSM pollsters are already messing with the polls by packing them with democrats because they know the TRUE picture.

            Liked by 1 person

    • Bill Zearfoss says:

      Yes Indeed They Will ! We Now KNOW Who Bill Barr IS !!!!!


    • Matt Bracken says:

      Liked by 3 people

      • Great speech – excellent comment above. Hope action supports his words.

        Liked by 2 people

      • Dan says:

        I have to disagree with Mr. Bracken that Barr’s speech was the most important separation of powers speech in a generation. It was extremely disappointing and flawed in 2 areas. While rightly bemoaning Congress’ intrusion on Presidential authority Mr. Barr failed to give even a nod to the very real trampling of the Constitution by the Executive branch. The domestic spying and even operations conducted by the intelligence community is as much of a threat to the people as congress’ assault on the Presidency. There is no constitutional authority for an EPA, SEC FEC, FBI, CIA, DOE (Ed and En). etc. Mr, Barr’s silence on these betrayals of the people by the Executive branch is indicative of a concern for presidential power rather than respect for the Constitution and the American people.

        Further, the absolute failure of the Executive branch to resist the dismantling of the constitution so eagerly pursued by congress is not an argument for a stronger Executive branch. Mr. Barr comes off as a whinny little bitch when he recites the many outrages of the activist courts. Neither President Trump nor William Barr have opposed these assaults on the rule of law. When some seditious district judge sitting in Hawaii or California hand down a ruling that purports to block executive actions nationwide the proper response is to tell that judge, and that court, to pound salt and try to enforce their injunction. Hell, when Trump initially tried to restrict immigration for the 9 failed states he had conflicting rulings from a District Judge in Boston and a nutjob on the West Coast. (I don’t have the inclination to look them up at the moment). Why would you choose to be bound by the judge restricting your authority than the one upholding it? Granted, that was under the cowardly Sessions but the pattern of surrender has continued under Barr.

        This speech, designed to rouse support for Trump’s personal battles. seems indifferent to the need to battle on a broader front. We still have no indictments. It is inexecusable that John Brennan and James Clapper have not been arrested and charged for their admitted of illegally spying on Congress and lying to congress about it (Brennan) and for also lying to congress while under oath. These are executive branch personnel who have admitted crimes and been given a pass by William Barr’s DOJ while it has the time to pursue BS charges against a host of Trump supporters, stupid rich people spending money to get their kids into college. The same is true for James Comey, Andrew McCabe, and Hillary Clinton. Yet all we get are endlessly looping promises of a soon to be released IG report and a tough as nails federal prosecutor. There is no reason to delay these prosecutions. Mr. Barr’s speech, while a passionate defense of the Executive Office, seems indifferent at best regarding the rights of the American people and the lawful limits to federal authority.


  5. InAz says:

    I am going to send another email to Barr and ask him what is he going to do about the destruction by the left. He has done nothing so far.

    Lyers, leakers, perjurers, Treasonous and Seditionists still employed and walking free.
    FBI and CIA spying on the President. Corrupt judges sweeping blatant illegal activities under the rug.

    Soros not investigated, etc

    The COUP has not been stopped.

    Liked by 4 people

    • Luz Maria Rodriguez says:

      True, it has not stopped or even slowed down.
      It will not, imv, unless and until a few get measured for prison clothing.

      Not to beat a dead horse, or donkey in this case, but in light of the multiple offenses against the law that Hillary made only for her to escape and even toss it in the faces of voters, shows the degree to which the nation, in fact, is not a nation of law. Further, IF Dr. Baden is correct, consider the breadth of the group that it took to set that up. IF Baden is correct, it is highly probable, what further evidence is needed that law was disrespected?

      Who were those billionaires, shakers and movers?

      Liked by 1 person

      • geokstr says:

        Perhaps a rational person would be deterred by seeing his comrades getting some prison time for sedition or treason, but remember, we are dealing with the left here. Their ideology is their religion, and winning total power and control is their only goal.

        As long as our educational establishment at all levels, our partisan media, our cultural/entertainment industries, and our bureaucratic deep state continue to preach, propagandize and indoctrinate the masses in hatred for this country and its principles, there will be hordes of followers willing to serve as cannon fodder for them, no matter how many we punish.

        When we kill the leaders of radical Islam, does that diminish the number of suicide bombers? Hardly. The only way to do that is convince them that there really aren’t 72 virgins waiting for them afterwards, which is not possible.

        Liked by 1 person

  6. Skidroe says:

    Barr knows how hard it would be to get any convictions in DC. President Trump should go on national TV and explain to America that elections have consequences and pardon Flynn and Stone. He can not change anyone’s mind. At least he would make his base happy. Flynn and Stone deserve it. I even wish he would do something like declare marshal law or what ever. Bring in the military. Try all of them in a military court. Also do something crazy to the media. SHAKE IT UP! Trump keeps his promises. It is going to be very interesting if(when) he gets re-elected. We just can not let the Dumbacrats cheat in MI, PA,or WI. Trump will drain the swamp. Some how he will do it.

    Liked by 1 person

    • rondonmonson says:

      Which means we have a damned problem, if DC is so bias towards Dems then DC should not be a be all end all on Grand Juries, it is after all the Federal Justice System, the whole nation should be available to try these cases. All of the nations cities and suburbs should be in a pool and chosen to try these federal cases. These people do not have a problem hiring million dollar lawyers, so they would have no problem traveling down to North Carolina for a trial.

      Liked by 3 people

    • Zippy says:

      If it it is believed that a defendant can’t have a fair trial in a given district it is moved elsewhere. Why can’t that be done for DC, too.? You can’t try the swamp IN the swamp. A jury of peers isn’t supposed to mean a jury of your fellow criminals.

      Liked by 3 people

      • Deplorable_Vespucciland says:

        The day will come when they finally realize
        that the only place to “try the swamp” is Gitmo.
        That’s the way to avoid the tentacles of the DeepState.

        Liked by 4 people

    • Mario Flores says:

      I 2nd martial law to clear out the traitors either that or have President Trump order them to get out of the way and leave it in the hands of his supporters.

      Liked by 1 person

  7. Sherri Young says:

    The Lefties are not happy. They are still calling for his impeachment. So mad they are almost sputtering.

    “Calls for AG Barr’s Impeachment Intensify After ‘Lunatic Authoritarian’ Federalist Society Speech”



      Richard Painter, the source of that quote is a freak.
      Bill Barrs speech was a fullthroated defense of our Constitutional Rule of Law.
      Understandably, The Leftist blow a gasket.

      Liked by 8 people

      • Sherri Young says:

        The article is full of names in bold typeface. Likely could serve as a guest list for a Resistance event.

        Dan Abrams runs Law & Crime according to the top of the page.

        Liked by 1 person

    • Justin Green says:

      Looks like the author was triggered.

      He can rot in Hell, too.

      Liked by 3 people

    • ann says:

      Dems are ALWAYS Angry, I don’t care anymore. In my lifetime their constant negativity has robbed me of simply enjoying my country .

      WE ARE A GOOD PEOPLE. Democrats are abusive , both verbally and by negligent care of our homeland. Think of our country as our generations child.
      Ask yourself if Democrats have been responsible stewards? Are their policies prudent?

      I’d say they blew through the kids college fund, his inheritance, they die the home will be deeply mortgaged and overrun w bums. Need a Dumpster to handle the environmental damage to our water.

      Their ship everything away and then redistribute cheap tainted slave produced crap spoils our quality of life & environment. Fractured many families.

      If DNC were under CPS investigation, they’d have two days to kick out the bums, put their house in order and get rid of the criminal family members that roost in the home!

      Liked by 2 people

      • ann says:

        Any hint of slippage, noncompliance, given their history of association w criminals and negligence, verbal abuse, very high risk.
        The child would be removed from their custody.,


      • edgyroy says:

        Democrats certainly don’t seem to be focused on America as a whole. But the Republicans and their supporters seem only to claim a loyalty to America, while they condemn fellow Americans in a most unpatriotic way. I agree that a vast majority of Americans are good people. I exclude myself from using WE, because I can’t consider myself good if I’m not really trying to help. I would suggest you do the same.

        Liked by 1 person

  8. Doug Amos says:

    All on the hands of the maggots in the media.

    Liked by 1 person

  9. islandpalmtrees says:

    Van Grack is not corrupt, he is very corrupt! And, Rudy Giuliani may pay the price. Not the first supporter of the President to fall victim. Read On.

    By Jim Hoft November 16, 2019

    “Van Grack currently wears two hats. In one of Attorney General Barr’s less-considered decisions, he placed Van Grack in charge of enforcing the very law that the Justice Department (and later the Mueller team) used as a pretext to spy on and leak against Trump in the 2016 election and his subsequent administration. Yes, Van Grack now wields the awesome and highly discretionary power of the unit that investigates and prosecutes violations of the Foreign Agent Registration Act (FARA).”

    Liked by 1 person

    • Mushroom says:

      Well, tell us Van Crack, did Billy B say, “sic’em Fido!”
      Or did Billy B say, “Here you go…I’m watching you!” (“Don’t hang yourself”)


      Liked by 1 person

  10. Les Standard says:

    Barr talks the talk but he’s a zero, now and forever, when it comes to that walking thing

    Liked by 1 person

    • iconoclast says:

      We should know for sure by Christmas.

      Liked by 1 person

    • drain.swamp says:

      Wm. Barr cited a few bad acts deserving attention, yet he missed the HUGE ELEPHANT IN THE ROOM, when legislature fails to perform it’s constitutional role and essentially aborts any exercise of it’s duties, even a weak corrupt executive CAN ORCHESTRATE A COUP D’ETAT ! That is precisely why we are in this situation today, is it not !


      NOTE: lawyers of the Federalist Society gave him a standing ovation…

      Liked by 2 people

    • covfefe999 says:

      Another armchair AG criticizing Barr. lol


  11. nattyrem420 says:

    Ann Colter is that you? (Sundance)


  12. Deplorable Canuck says:

    Well what ever you may say about Barr’s lack of action to date on behalf of the Executive office, you cannot dismiss him as an inconsequential scholar and interpreter of the Constitution of the USA. That is one of the most brilliant assessments of the constitutional situation I have ever read. Gives me hope that someone that highly placed has identified the true nature of the situation.

    Liked by 5 people

    • trump20162024 says:

      I enjoyed AG Barr’s speech. Thanks to the criminality of the obozobots and our election of the Trumpster in 2016, Barr now has the opportunity (and responsibility) to restore the rule of law, equal justice under the law, the balance of power between the three branches, and the subservience of the deep sh8t state to our will. If Barr’s DOJ fails to do so well before November, 2020, the Trumpster will not be reelected. Barr will then join the list of marquis of queensbury RINOs who allowed this once great Republic to collapse into the commissars’ cesspool of socialist cronyism. Time is running out.

      Liked by 2 people

    • covfefe999 says:

      Lack of action? He started a federal investigation of the traitors. It won’t be completed on your timeline, it will be completed when it’s completed. Very complex stuff involving numerous high-powered officials, mutliple government-launched investigations … they have to be careful to piece it all together to make their case. We have time, be patient. The election is a year away.

      Liked by 2 people

      • ann says:

        Okay., but in my perspective, open season corruption & blatant abuse of surveillance & power. No punishments of high status KNOWN SERIAL Offenders for over 30 years.

        We have damn Good cause to be skeptical , and angry ! Tolerating LE Prosecutors, Senators who we KNOW engage in crimes harms our body politic.
        Every day that passes deepens my anger.


  13. Rynn69 says:

    AG Barr’s speech was excellent. I truly pray this is a precursor to righting the ship by bringing members of the coup to justice. I hope that AG Barr has the courage and God’s will to do the only thing that is called for at this time in history.

    I find the fact the President is term-limited and Senators and Congressmen (legislative) and Judges/Justices are not to be extremely problematic to our Republic. This unlimited tenure bends the country to the will of the government vs. the will of the American people. Or as AG Barr put it – encroaching legislative and judicial branches.

    Liked by 1 person

    • covfefe999 says:

      I hope Barr and Durham dig up some rock solid evidence that will allow them to charge the traitors with crimes. We have to remember though that the traitors are all very skilled and they undoubtedly worked hard to cover their tracks or make their actions appear legit. We’re sure we know what happened but the courts will require substantial evidence.

      Liked by 2 people

      • steph_gray says:

        Dig it up? It’s everywhere! The evidence has been extensively documented, first and foremost on this site, and also by a growing number of authors and commentators on our side. Not to mention a few who are, believe it or not in this day and age, relatively bipartisan.

        I don’t buy all the fear porn and will wait to see what Horowitz, Barr, and most of all Durham, actually do. Mind-reading has never been my thing.

        Learned a lot from this speech, recommend it!

        And by the way – a lot of people come to this site and proclaim a hnds-down verdict that Horowitz, Barr, and Durham are all black hats just because justice grinds slowly. You know what that is?

        It’s assuming they are guilty until proven innocent. It’s what the left has done for 3 years to President Trump.


  14. appraisher says:

    Everything that AG Barr said was spot on and absolutely correct, save for his conclusion that the power of the presidency has been diminished within the past decade. I believe that the power of the presidency reached it’s zenith with Obama, who was neither challenged nor diminished, instead, Obama’s power was enhanced beyond it’s scope by Congress and the media…and the republicans reticence to challenge it.

    What we see being done to President Trump, is exactly what AG Barr is articulating…the left’s diminishing of the power of the presidency and the push to de-legitimize and destroy the man WE elected, based on an almost monomaniacal need for power, and fear that their sedition will be exposed and punished.

    Barr obviously knows this and he is the only one in a position to stop it from happening to, not just President Trump, but to any other true republican president that advocates against the entrenched Deep State. As a man of law, Barr knows that the only way to stop this un-Constitutional usurpation of power, is to punish those responsible…there is NO other way to right this ship of state.

    Will he take the mantle of the patriots he says he reveres, or will he be just another speech-giver, railing against the machine?

    Liked by 2 people

  15. jeans2nd says:

    This was a lovely speech. Just lovely.
    AG Barr eloquently voiced all the things we have articulated for so long, albeit crassly compared to AG Barr’s remarks.

    There is just one very large problem.
    AG Barr obviously knows what we know. AG Barr just said so.
    Just how will AG Barr get away with doing nothing about all the lawlessness so extant in our Corrupt Swamp Dweller Bureaucrats, most especially in AG Barr’s own department?

    We shall see.

    Liked by 1 person

  16. MaineCoon says:

    This is an excellent speech by an Attorney General during peace time.
    This is an excellent speech by an Attorney General during War time.

    This is NOT an excellent speech by an Attorney General during a time where the very actions he condemns as encroaching on the President’s constitutional role is occurring and he repeatedly Declines Prosecution of same.

    Liked by 1 person

  17. edgyroy says:

    Reading most of the comments on this post reminded me of an incident I had when I was just 16. I had spent the previous evening watching TV as Armstrong and Aldrin walked around on the moon. I was going out the front door when I saw my aunt-in-law hanging laundry, I casually walked up to her and asked “what’d ya think of that moon landing?” She practically shouted at me “No man landed on the moon! The bible says when a man lands on the moon, the world will come to an end. The world didn’t come to an end. So a man did not land on the moon!” I thought the lefties were a bunch of empty-headed, anti-American loons. But you righties sound just like my aunt-in-law. I wonder if America can ever be saved.

    Liked by 1 person

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s