Quite a few blogs are linking to AG William Barr’s recent speech
at the Barbara K. Olson Memorial Lecture at the Federalist Society, and with
good reason. It is excellent for his insights into the present political landscape, and also
in tracing the provisions in our founding documents as influenced by earlier European history. A short
extract:
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.
. . .
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.
Read the full speech here. I hope Mr. Barr’s words are
followed soon by indictments.
# # #
