Impeach? How About Implode

No one captures the Dems’ impeachment lemming-ness like Kurt Schlichter.

He’s again in great form in this summation of Wednesday’s Soviet style professor/partisan spewings on the Constitution and impeachment.

From Townhall:

Well, the gibbering, babbling left wanted an impeachment, and now they’re getting it good and hard. To the surprise of no one who isn’t a blue city pol, a media hack, or an insufferable Fredocon sissy, the American people are not particularly impressed by the genius idea of replacing our president a year before an election because he allegedly expressed curiosity about why the coke-sniffing, stripper-impregnating, dead brother’s wife-trifling, Navy-rejected loser son of Vice President Gropey O’Definitelynotsenile scored a $50K+ a month gig on a Ukrainian gas board. And it’s just dawning on some of them they maybe this impeachment brainstorm was not the bestest idea there ever was.

They think the optics of the Schiff hearings were great. They weren’t great. Yeah, let’s get a bunch of Deep State suits to come in and explain how the guy we elected to shake up the foreign policy elite’s decades of utter failure is bad because he is shaking up the foreign policy elite’s decades of utter failure. And then you have That’sLieutenant Colonel Bratwurst – if you’ve been in uniform, you know there’s one of those guys in every unit, and the wise commander has him off inventorying combat boots at the CIF, where he can’t provoke the troops to hang him by his skivvies from the flag pole out in front of Division HQ. You look at this parade of smug, over-credentialed bureaucrats with delusions of competence and a track record of screw-ups and, to cite the popular meme, you realize that Trump was elected to fire people like them.

Maybe you hear it in the Beltway, but you don’t hear normal people out in America demanding, “Let these people rule over us unimpeded by our electoral choices!” After all, these are the same people who think your kid ought to die defending the Turkish-Syrian border but tell you it’s a crime against humanity to defend our own border with Cartelistan.

Schiff did a predictably schiffy job, so to salvage this smoking ruin, why not make the smart move and hand it over to the Judiciary Committee for more onanism under the steady, not-moronic-at-all guidance of that legendary legislative oompa loompa, Jerry Nadler (D-Wonkatown)? Let’s start with a parade of liberal law professors. I have a bit of experience with that. Watch the Home Shopping and the Bass Fishing Networks’ ratings go through the roof. It’s like the Dems gathered together all the most noted and renowned morons in the Democratic Party and got together to work out a solution to the question, “How do we make this political New Coke even worse?”

No one else is asking this question.

Let’s leave aside the fact that simple math makes this entire exercise as futile as a Weekly Standard writer staffer’s Valentine’s Day. Their eventual humiliation is assured in the Senate unless and until they get 20 Republicans to commit ritual suicide over Trump pointing out the manifest corruption of Touchy J and Lil’ Crackpipe.

And they aren’t getting 20 GOP votes in the Senate. Igloo Maverick Lisa Murkowski, maybe, but they probably won’t even get Mitt Romney. At the end of the day, he’ll submit. He wet himself when Candy Crowley rebuked him. Do you think he’d dare stand up to the Murder Turtle?

So, where do these clowns go now that they’ve taken this thing so far and bored and annoyed all of America outside the blue hellholes? Adam Schiff doesn’t have to worry. In his district, Lenin would get a primary challenger from the left. He’s safe. So is Nadler the human garden gnome, and so are so many of the libs howling about Ukraine now that the whole howling about Russia thing nosedived.

But those purple district Dems who got elected talking about “unity” and “working together” and how they would be “independent” and “not Nancy Pelosi’s puppet,” well, it’s a little different when Nancy’s hand is up your puppet hole making you say “impeachment” while your constituents are saying, “Uh, what exactly have you done in D.C. for two years besides whine about Trump?”

And what have they done? Literally nothing. The Democratic House has done zero things since they took over. The Mexico-Canada trade deal is sitting there, waiting, and they are whining because Trump dares to investigate elite corruption? If you look at the Democrats, they seem to think that the biggest problem America faces is that Democrats do not have more power, and that the only issue worth addressing is their deficit of authority. But powerless liberals is a feature, not a bug.

You’re starting to hear some rumblings from the margins about how maybe this wasn’t the stroke of genius the congressjerks from West L.A. and Manhattan thought it was. The fact that it will inevitably end in a bored senatorial shrug is the perfect chef’s kiss. The dealer is showing a king and the Dems have a three and a deuce? Time to double down!

This is going to end badly, hilariously badly, and everyone seems to know it except the Democratic leaders like Schiff and now the Nadd, who are driving full speed into the brick wall (Pelosi knows, which is why she’s right behind them, every step of the way). It’s like the proverbial dog who chases the car and then wonders what to do when he finally catches it – just before the car backs up and runs him over.

Cohen’s Message of Thanksgiving Cheer

Next month, the Judiciary committee headed by Jerry Nadler, will take up the impeachment banner.

Not only will we have to look at that poor excuse of a human being, we will also have to look at the poor excuse for a human being who represents us – Steve Cohen.

Chicken eating Stevie is on that committee, too, and look what he promises: “we can impeach Trump again.”

From Breitbart:

On Wednesday’s broadcast of CNN’s “Anderson Cooper 360,” Rep. Steve Cohen (D-TN) said House Democrats could impeach President Donald Trump again.

John Berman asked, “Given the fact each day it seems we learn more about what the president knew and when he knew it, are you concerned that this impeachment process is being rushed through before all the facts are known, more stuff may still come out?”

Cohen said, “Well, I think things will come out. Things will come out for as long as he’s president and after he’s president. We will continue to pursue those issues, and we can still have hearings in Intel in Judiciary on actions he took that are violative of the Constitution, that are violative of law that affects our national security. All of those things can still be subject for hearings and possible— if there is something that comes out that’s impeachable, that doesn’t mean you can’t have another impeachment. There’s no rule that you win once and olly olly in-free.”

This turkey of a congressman will be gobbling up face time on cable news networks all through December.

I am not thankful for that.

Top 10 Reasons He Lied

Matt Margolis at PJ Media puts the whole ridiculous event yesterday in a nutshell. He outlines the ten reasons Vindman’s testimony yesterday hurts the Dems:

Forget the Democrats’ talking points. Forget the media spin. If you watched Lt. Col. Vindman’s testimony today it was a total dud for the Democrats and their impeachment witch hunt. Need proof? I’ve compiled ten reasons that the show today did not advance the Democrats’ narrative one bit.

10. Vindman admitted that the president, not unelected bureaucrats, sets U.S. policy

It’s hard to imagine why pointing this out is even necessary, but Democrat counsel Daniel Goldman seemed to be under the impression that unelected bureaucrats set U.S. policy, not the president.
9. Vindman admitted he never had contact with President Trump

This would be kind of important for such an important witness, don’t you think?

8. Vindman admitted having no firsthand knowledge of aid or an investigation and was just “following news accounts”

Once again, this looks really bad for the Democrats. If he doesn’t have firsthand knowledge of the alleged quid pro quo, why are we even talking to him?

7. Vindman admitted Trump was “well within his rights” to ask Ukraine for help in an investigation

Which pretty much negates the entire need for this impeachment inquiry, doesn’t it? If Trump was within his rights to seek assistance in an investigation, then he did nothing wrong.

6. Vindman admitted that putting the transcript of the Ukraine call on a secure server was “definitely not unprecedented”

Oh, but Democrats claimed that was part of a cover-up!

Further to this point, Vindman admitted the concern about leaks was legitimate.

5. Vindman admitted the Trump-Zelenksy transcript was “very accurate”

Remember how Democrats made a big stink that the Trump-Zelenksy transcript wasn’t a transcript at all, but a memo? Apparently they wanted us to believe that the call could have been more sinister than we actually know about… well, so much for that theory.

4. Vindman admitted he has never used the term “bribery” to describe the president’s actions

Back then, “bribery” hadn’t been the focus-group-tested term of choice.

3. Vindman said he couldn’t recall Ukrainians feeling pressured to do investigations

It’s kind of hard to claim that they were pressured when there’s no evidence they felt pressured.

2. Vindman said, “As far as I can tell,” Hunter Biden was not qualified to serve on Burisma’s board

But, you know, Biden’s running for president now, so we can’t investigate why he was there.

1. Vindman said there was an appearance of a conflict of interest with Hunter Biden being on the Burisma board

Every single witness who has testified has been asked this question and has said yes.

Barr Speaks Out

Attorney General Bill Barr addressed the Federalist society.

What he had to say about our current state of government is enlightening and reassuring. The man is obviously brilliant. If he follows what he says, there should be many prosecutions coming of the Deep State.

Read the whole, if lengthy, speech. Or watch it here. You will not be disappointed.

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.

Handy Timeline Tells a Lot

Sharyl Attkisson at the Hill has compiled a factual timeline of the Ukraine events. It is an enlightening sequence of events:

Aug. 15, 2016: After FBI counterespionage chief Peter Strzok and FBI attorney Lisa Page met with Deputy FBI Director Andrew McCabe, Strzok texts Page that they couldn’t take the risk of Trump getting elected without having “an insurance policy” in place.

October 2016: Benjamin Wittes, founder of a left-wing liberal blog called “Lawfare” — as in the “use of law as a weapon of conflict” — writes, “What if Trump wins? We need an insurance policy against the unthinkable: Donald Trump’s actually winning the Presidency.” Wittes writes that his vision of an “insurance policy” would rely on a “Coalition of All Democratic Forces” to challenge and obstruct Trump, using the courts as a “tool” and Congress as “a partner or tool.” He even mentions impeachment — two weeks before Trump is elected.

Wittes has acknowledged being a good friend of fired FBI Director James Comey. He spoke to a New York Times reporter about Comey’s interactions with President Trump right after Robert Mueller’s appointment as special counsel.

October 2016: The FBI begins a yearlong secret wiretap on Trump campaign adviser Carter Page, which would have allowed intel officials access to information and conversations involving other Trump associates and possibly Trump himself. Page was never charged with any offense. The FBI never apologized for the unwarranted privacy intrusions. The lawfulness of the wiretap has been questioned.

Jan. 3, 2017: Senate Minority Leader Charles Schumer (D-N.Y.) publicly warns Trump that if he took on the intelligence community, it has “six ways from Sunday to get back at you.”

Jan. 11, 2017: A Politico investigation concludes that Ukrainian government officials tried to help Hillary Clinton and undermine Trump in the 2016 election with help from a Ukrainian American operative who was consulting for the Democratic National Committee.

Jan. 30, 2017: Days after President Trump takes office, attorney Mark Zaid tweets that a “coup has started” and “impeachment will follow ultimately.” Zaid often deals with government investigations and clients in the intelligence community.

A few months later, still in 2017, Zaid tweets: “I predict @CNN will play a key role in @realDonaldTrump not finishing out his full term as president” and “We will get rid of him, and this country is strong enough to survive even him and his supporters.” Zaid also tweets that “as one falls, two more will take their place” and the “coup” would occur in “many steps.”

Zaid went on to represent the alleged whistleblower in the Trump impeachment effort. (Zaid has stated, in his own defense, that his mention of a “coup” simply referred to what he saw as a lawful attempt by attorneys to remove an unlawful president from office.)

May 17, 2017: Special counsel Robert Mueller begins investigating Trump.

August 2017: Trump critic and former Director of National Intelligence James Clapper is hired as an analyst at CNN. He attacks Trump regularly, at times with incorrect information.

Jan. 23, 2018: Former Vice President Joe Biden publicly brags that he got Ukraine to fire its top prosecutor by threatening to withhold U.S. aid. The prosecutor was investigating Burisma, an energy company where Biden’s son had served on the board since 2014, when his father was vice president.

Feb. 1, 2018: Trump critic and former CIA Director John Brennan is hired as an analyst for NBC and MSNBC, where he attacks Trump regularly, at times with incorrect information.

March 22, 2019: The special counsel’s probe ends without concluding that Trump or his associates conspired with Russia, despite what critics such as Brennan and Clapper long had claimed. Democrats are unable to unite on an impeachment push over the findings.

April 2019: Ukraine elects a new president. Former Vice President Biden’s son Hunter Biden steps down from the board of the Ukrainian energy company Burisma.

July 25, 2019: President Trump calls the newly elected president of Ukraine and asks for cooperation in a probe involving long-standing corruption in Ukraine along with alleged ties to U.S. Democrats and the 2016 campaign.

Aug. 12, 2019: Someone alleging to be a whistleblower files a complaint about the phone call with the intelligence community’s inspector general. The anonymous person alleges President Trump sought political dirt to use against Biden in 2020 as part of a “quid pro quo.” Quids pro quo aren’t inherently illegal or improper and are, in fact, a key component of most foreign aid. However, the whistleblower claims Trump is improperly withholding military aid from Ukraine for his own political purposes.

Sept. 9, 2019: The inspector general notifies the House Intelligence Committee about the complaint. Although Committee Chairman Adam Schiff (D-Calif.) initially denies doing so, it turns out that he and his staff already had met with — or conspired with, depending on your view — the alleged whistleblower.

Sept. 24, 2019: House Speaker Nancy Pelosi (D-Calif.) announces an impeachment inquiry based on the alleged whistleblower’s claims.

On the same date, President Trump releases the transcript of his call with Ukraine’s president. There is no mention of a quid pro quo, political dirt, withholding aid or campaign 2020. Trump’s critics counter that these things were implicit. There is no evidence, however, that Ukraine provided Trump with “dirt” on Biden — a necessary component of an alleged quid pro quo.

Sept. 25, 2019: The president of Ukraine says he did not feel pushed by President Trump to investigate Biden or to take other action.

Oct. 31, 2019: The House approves impeachment process rules. The vote is largely along party lines, with two Democrats siding with Republicans.

It could be a coincidence that so many key names in this timeline — from John Brennan and James Comey, to Ukraine and CNN — factor into the Trump impeachment push. And, further, it could be a coincidence that we have ended up where some Trump critics said they hoped to be, even before he was sworn in.

On the other hand, in retrospect, the biggest surprise might be that, all things considered, it took them so long to get to this point.

Gov. Lee at CPAC

Reporters made a big deal about Governor Bill Lee not addressing national (i.e. impeachment frenzy) issues at the CPAC conference Tuesday.

The CA reporter wrote, “The governor’s speech at CPAC Memphis stood in marked contrast to those that preceded him including former U.S. Ambassador Bill Hagerty, who is running to succeed Lamar Alexander in the U.S. Senate.
“In his address, Lee talked about criminal justice reform, mentorship and school choice. He hardly acknowledged the national conversation and rhetoric that had been the focus of the morning’s events so far.”

This is nonsense. Why would he? He is governor of Tennessee and as such has many state issues to contend with. I never expected him to delve into national politics and he didn’t.

Ambassador Hagerty comes from a different, international perspective. He has dealt with Trump personally as he represented us in Japan. He agrees with his policies, particularly China. It was “liberal socialists that called me back to run,” he said. As a senator, international policy will be part of his duties.

Lee, by contrast, looks after our state.

The TennCare block grant proposal he is backing is one of his priorities and the only reason most of those reporters were even at CPAC. They accosted him after his speech, waiting in the open area in hopes they could get another lick in against the block grants.

The CA and other sources tell us all the time that the public has given his plan “negative comments.” We don’t know that. That’s what they tell us.

We are all too familiar with this kind of reporting. It needs to be placed in the same trash receptacle most of what they spew deserves.

Straka Talks the Walk

One of the other speakers who electrified CPAC was Brandon Straka.

You may have seen him on the news or on an hour long interview Mark Levin did. Straka started the #WalkAwayMovement. WalkAway, like Blexit, urges people to leave the Democrat party. In his case, it is his fellow gays, who he feels completely misunderstand Conservatism.

His own conversion did not come til 2017. He had voted for Hillary. Growing up in rural Nebraska in the 80s and 90s, Straka had come to believe that Republicans hated minorities. When he moved to New York City, the messages he got reinforced his belief.

“Liberals live in a bubble,” he said, “where all the news and messages recirculate. After the election I couldn’t understand why Trump won so I went on a quest to find out. I went to social media. I had seen the video that appeared to show Trump mocking a reporter with a disability.” He was appalled.

Then a relative sent him a video that showed Trump was not mocking the man, but had used the same mannerisms in other campaign appearances. “It was almost as if CNN lied to me,” he laughed. Further research showed him that the media was indeed using fear to manipulate people.

“On May 18 of 2017 I shot a video of everything wrong with the Democrats and urged people to walk away from them. I encouraged others to post a video.” He had an amazing response and his movement was launched.

“I’ve come to fall in love with Trump supporters,” Straka said. “But we don’t fight back. It’s time for the silent majority not to be silent. Stop allowing the media to define you. There is a great awakening, but social media suppresses us and we must build our own media entity.

“We must stand up for Trump in return for all he is doing for us.”
Straka has a website, walkawaycampaign.com, which explains his experience and takes donations.

He has big plans for a march on Washington before the election on October 3, 2020. You can find out more about that at Unsilentmarch.com.