How the left is trashing the Constitution to fight Trump

How the left is trashing the Constitution to fight Trump

BY: AG WILLIAM BARR

NOV 18,2019

At 8:47pm

Excerpted from Attorney General William Barr’s recent lecture at the Federalist Society’s 2019 National Lawyers Convention.

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. 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.

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.

[But] 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 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.

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 [President Trump’s] 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.

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.

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 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.