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Great speech by AG Barr on the current conflict between Congress, the Courts, and the Executive branch. Just a few(?) highlights included – worth the read (or watch the video).
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….
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….
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….
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….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 avoids legislating….just passes on rule-making to agencies…that they insulate from Presidential control…..
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….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 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….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…. 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.
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…
…t.he prime source of the erosion of separation-of-power principles generally, and Executive Branch authority specifically…is the Judicial Branch….
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….
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 impact of these judicial intrusions on Executive responsibility have been hugely magnified by another judicial innovation – the nationwide injunction…. 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 most blatant and consequential usurpation of Executive power in our history was… when the Supreme Court…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….
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.
…. 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.
Capricorn posted on November 15, 2019 at 09:15
Adult language is permitted if it is contextual and not aimed personally at a poster.
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