Saturday, November 16, 2019

AG Barr's Originalist Critique Of The "Resistance"

Yesterday Bill Barr presented an important analysis of the state of Executive authority--the Article II powers of the President--in modern America. Barr did this in the form of an address to the Federalist Society which was attended, among other prominent persons, by Brett Kavanaugh. The address is over an hour in length--a video and transcript can be found at CTH. I'm slightly more than halfway through the text, so am in no position to give an overview of the whole. However, I present below some excerpts which are directly relevant to the so-called "Resistance" to the government of the United States.

Yes, I meant that--resistance to the government of the United States. Barr begins his analysis by tracing the general outlines of the conceptual framework of the Executive authority within our constitutional order, as envisioned by the Framers of the Constitution in proper historical context. In doing so, he leaves no doubt that what we are faced with is an attempted overthrow of that constitutional order. Should Pelosi's attempted assertion of pre-eminence of the House over the Executive--the only nationally elected Branch of government--succeed, there is no doubt in my mind that "progressives" would go on to assert their pre-eminence over the Judicial branch as well.

I have, in the past, asserted that Barr is committed to the originalist view of the Executive power as "unitary" under the Constitution, inhering in the single person of the President. Barr's analysis in this address is a powerful expression of that view, and fully justifies my impatience--which I have not attempted to hide--with the notion that Barr is somehow a creature of the Establishment, a creature of Executive branch subordinates and agencies, more interested in protecting their prerogatives than the institution of the Presidency.

It is reassuring that a key adviser to President Trump is so articulate in presenting this principled view to the President.

Herewith, some excerpts that give a flavor for Barr's critique of the "Resistance", which arises especially from the Legislative Branch. These selected remarks bear directly upon not only the attempted coup of the Russia Hoax and its continuation in the Mueller Witchhunt, but also upon the current Impeachment Theater in the House. Barr leaves no doubt as to his support for this President, and for Donald Trump's principled governance in the face of outrageous and unprinicpled attacks on our constitutional order. He also demonstrates a broad grasp of the field of battle in our current crisis.


Legislative Encroachments On The Executive Authority Under The Constitution

• 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.


  1. I just finished reading Barr's speech. To my mind, its a tour de force. My opinion on the construction of the Constitution is probably not worth much, but I could find nothing in it to disagee with. I heartily recommend that everyone read it.

    In particular, I now far better understand the legal and constitutional basis for Barr's views regarding the constitutional role of the Executive.

    Based on his actions to date, thank god we have Attorney General Bill Barr. I am cautiously confident he is searching for the truth in the investigation of the predicates for the Coup. I pray that the truth will come out and that appropriate prosecutions and convictions will follow.


    As long as I am handing out encomiums I want to applaud Devin Nunes' remarks before the Schiff Committee. Mr. Nunes absolutely gets what is happening here. Highly recommended.

    1. I haven't gotten around to that. It's on my list.

    2. I like how they made Schiff's eyes bulged out after Stefanik tried to ask question. She really drilled him a good one. I think that was done intentionally.

      Rob S

    3. When stopping Stefanik, Schiffty defended this act, via a House procedure/ rule.
      Has that rule always been so, or is it one of his recent "modifications"?

  3. I am only partially through your critique. You and I are pretty closely aligned with our views of Barr. When I first read his remarks when he was either nominated, or about to be nominated, he made remarks that I interpreted as he was either a committed Deep Stater or a committed supporter of the President. I suspected he meant the latter.

    By a committed supporter of the President, I mean that he (Barr) realized that President Trump had done nothing wrong and was being railroaded.

    In his time since confirmation earlier this year, he has done nothing to undermine my initial faith in him. In fact, he has impressed me wildly. He is the man we need as AG at a dark time in our nation.

    He has a solid moral core and a backbone of steel. I thank God for his service. When the President needed a reliable cabinet member in the nest of vipers inhabiting his administration, he picked very well.

    1. I think the moral core is key, and what progressives fear in him.

    2. Absolutely on the moral core.

  4. When I read the part about progressives denying legitimacy--yes, they see that as for THEM to bestow--I was reminded of Pelosi's attempt to prevent Trump from delivering the State of the Union.

  5. Brilliant speech. I have read the whole thing. He doesn’t worry me. He gets it. Some are in a frenzy that this is “just talK, where are the indictments?” thus showing that they have no idea what goes into prosecuting a huge conspiracy like this one has turned out to be. So many moving parts in so many parts of our government, and even those abroad. Donald J. Trump quite literally fell into a can of worms, but that would be much more easy to deal with than this…

    He was, to put it simply, not a member of The Club. Not one of Theirs. The guy who swore to tip the (their) apple cart. Bigly.

    I am glad those hearings are being televised. Few will watch, as few read anything but the MSM, but maybe we can do some propagandiing ourselves. Get the word out. I have one 40 year old convert from Dem to Trump in my extended family. She has given me hope.

    1. In the big picture, it may well be a good thing.

  6. Yes, it explains her remarks labeling Trump an "imposter". An imposter because the left only bestows legitimacy on Fellow Travelers to Authoritopia.
    Tom S.

    1. I suspect that if you got Barr one on one you'd get an even more trenchant critique.

  7. In many ways this speech is a gauntlet thrown down to the Deep State and it's media allies. Barr is saying that he intends to fight and welcomes the coming battle. Pelosi and Schiff are behaving as tyrannical bullies in their pursuit of a sham impeachment investigation and politics alone will not deter them. Only Barr has the means to smack them upside the head with some rule-of-law hard-knocks wisdom and he will step onto the field of battle very soon. If you've never seen what a bully does after getting punched in the nose, next year will become a unique education for many.

    1. "In many ways this speech is a gauntlet thrown down to the Deep State and it's media allies. Barr is saying that he intends to fight and welcomes the coming battle."

      Barr has not only logic and the law on his side but also the moral high ground.

      I like his chances.

  8. "Barr is saying that he intends to fight and welcomes the coming battle."

    Yes. I believe the timing, while possibly fortuitous (the date of the lecture would have been set long ago), is something that he took into account.

  9. Undercover Huber:

    Highly recommended watching. AG Barr torches the left and judicial and congressional constitutional vandalism

  10. Of course, he must mince words in public, just as I do!
    CTH has a post on this speech, where reader Mac's comment starts with:
    "What you have to realize is, that Barr is not interested in prosecuting anyone, or redressing wrongs. He wants to save the Union from Civil War."

    and ends with:
    "Remember, criminal indictments, of officials from the last administration, could well trigger the armed insurrection which Barr, et al, is trying to avoid.
    This is just another shot across the bow, of the INSANE anti-Trump faction."

  11. Comment of Mac is at .

  12. Do we really believe that prosecuting officials from the Obama administration would trigger an armed insurrection? Barr is in law enforcement. I believe he would like to bring the miscreants to justice, hopefully disentangling them and extracting them from the government agencies they poisoned without destroying the agencies themselves. He is knowledgeable and prudent. Methodical. Mercifully not a wild-hair ideologue. He sounds like a strict originalist. I am game to go with that and not try to read his mind, come up with ulterior motives and all that. I will watch him as we must always watch people in power. So far I like what I have seen.

    1. Actually, I don't see it directly triggering an armed insurrection.
      Rather more likely, the Left will first turn to Guerilla Theater passive resistance, hoping to shut down Barr's trials, or provoke "police brutality".
      If cops touch so much as a pinkie of a black, look for the MSM to treat that black as the new Emmett Till, so as to incite the Left to then amp up the Resistance.

    2. The above *on blocking courthouse doors) is just one, of who knows how many, ploys the Left will try.
      Like with RussiaGate, StormyGate, and UkraineGate, the Left will keep on plugging, even if each specific ploy is LOW-percentage.
      If they can inspire a few attacks on guys like Reginald Denny, they may be able to slow delivery of food to a trickle (in a low-inventory, JIT economy)
      thereby making Barr scream "uncle".

  13. Possibly a clue as to Barr's prominence - he know's what NOT to say out loud. Here's one paragraph in his written speech which he didn't read out loud, possibly to prevent it from becoming just more fuel for Democrat Media's jihad against him?

    "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 war, especially when doing so under the weight of a hyper-partisan media."

    1. I didn't realize that that wasn't said out loud. I only read the "transcript."

      What he wrote is very true, of course. A principled conservative doesn't want to tear down even the damaged fabric of our constitutional order, whereas that's exactly what progressives want, without a thought for the consequences.

  14. Tearing down (not repairing) our institutions was Alinsky’s schtick. Total scorched earth revolution. Problem was, as I recall, he had nothing to offer to replace them. No plan for governing. The god of the community organizers...

  15. Trump can do one thing right now. He can submit a budget and refuse to sign anymore continuing resolutions.