The speech of US AG Bill Barr on the disruptive role of the judiciary in the American democracy

I am publishing the portion of Bill Barr's speech about the role of the judiciary in the legislative process and the executive decision-making without comment for now.

I do not endorse every single argument in this speech, but I do consider the speech an important food for thought for every American citizen and voter.

Time permitting, I will try to provide comments on sections of the speech regarding the role of the judiciary issue by issue.

Here is the link to the full text of the speech.


"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."