Remarks as prepared for delivery
Thank you, Attorney General Meese for that generous introduction. It means a lot to me, especially coming from you.
I have said it before, and I will say it again: Ed Meese is one of the greatest Attorneys General in American history. You had a transformational influence on law enforcement in this country and laid the foundation for 20 years of declining crime in America. Law enforcement still loves you.
t was an historic accomplishment. As was your leadership in igniting the jurisprudence of originalism. And now, largely because of your work, for the first time in our lifetimes, we have a majority of justices who adhere to these principles.
Ed Meese’s courage and commitment were central to this tremendous achievement—and so many of his and President Reagan’s accomplishments were done hand and glove with this great Heritage Foundation.
It was a true honor for me to work for Ed as United States Attorney for the Southern District of Alabama.
Thank you also to:
- Ed Feulner—one of the founding fathers of the Heritage Foundation, who led it for more than three decades, and the man who helped author the blueprint for the Reagan agenda back in 1981,
- The Board of Trustees: Barb Van Andel, Michael Gleba, Thomas Saunders, Ginger Heckman, Ryan Haggerty, and Nersi Nazari.
- And of course, the inimitable Kay Coles James. You are doing fabulous things here every day and your leadership is felt throughout the movement.
This is a distinguished crowd. I’m told that we’ve got guests here all the way from Alaska and from Europe, as well.
It is wonderful to be with you at a time when conservative ideas are having success again. And many of the ideas conceived and championed by the Heritage Foundation are now the policies of the United States.
And the proper role of the judiciary is critical. Donald Trump has appointed 84 federal judges—including two Supreme Court justices, and 29 circuit judges. These are well-qualified, experienced, faithful judges who know that they serve under the Constitution—not above it.
These judicial appointees are the culmination of decades of the work done by those in this room, and Justices Gorsuch and Kavanaugh are the heirs to this legacy. And I’d just like to say that Justice Kavanaugh, our newest justice, is one of the most accomplished jurists of our time, a good man with a brilliant intellect. He will continue to serve with distinction in the years ahead.
Because he understands what is important. We inherited from England and our Founders—and have advanced—an unsurpassed legal heritage, which is the foundation of our freedom, safety, and prosperity.
It is a precious, rare, and fragile heritage. We at the Department of Justice must defend it resolutely.
But many would sacrifice that heritage of law and objectivity to gain short-term ideological or political advantage.
As careful students of history and political theory, the Founders focused much of their debates over the Constitution on what form of government would best protect liberty and advance the well-being of Americans. Madison famously explained in Federalist 47 that “the accumulation of all powers … in the same hands … may justly be pronounced the very definition of tyranny.”
Accordingly, the Founders distributed power across three co-equal branches of government.
Each one of these branches is indispensable, and the powers of one cannot be encroached upon by either of the others. Each branch deserves respect—and each branch ought to show respect in return. And, each branch is justified in defending its legitimate powers against encroachment.
The judiciary is given respect from the Executive and the Legislative branches. That is why the two political branches follow and enforce the rulings of the Judicial branch—even when we disagree.
But judges are not sent from Olympus. They are not all-knowing, and the Founders did not establish the federal judiciary to be the final arbiter of all important questions in our society. And so, the Judicial branch must show significant respect for the Executive branch and Congress. I fear, in a variety of ways, that respect has been eroding.
You are all probably familiar with the term “judicial activism.” An activist judge has traditionally been defined as one who goes beyond the law in a given case and injects his or her personal opinion or policy preferences into judicial rulings. This improperly takes the policymaking prerogative away from the democratically accountable branches.
One argument for activism was advocated openly by President Obama when he declared his judicial nominees must judge with “empathy.” It is a seductive argument. But whatever empathy is, it’s more akin to emotion, bias, and politics than law. Such an approach is a direct threat to law, and since law and law alone protects our liberties, it’s a threat to our freedom and the democratic process. We at the DOJ fight against this heresy relentlessly.
The rule of law is more than an outcome. It is a formal process that creates an opportunity for a jury or a court to produce a just outcome—and a just outcome may not be the politically popular one.
Judicial activism is therefore a threat to our representative government and the liberty it secures. In effect, activist advocates want judges who will do for them what they have been unable to achieve at the ballot box. It is fundamentally undemocratic.
Too many judges believe it is their right, their duty, to act upon their sympathies and policy preferences. In the recent DACA litigation, for example, a judge last year told one of our DOJ litigators, “You can’t come into court to espouse a position that is heartless.” Not illegal. Not unlawful. Heartless.
And later, after I responded in a speech that it isn’t a judge’s job to decide whether a policy is “heartless,” the judge again scolded the DOJ lawyer by stating that I “seem to think the courts cannot have an opinion.” Well, of course a judge can have political and policy opinions.
But they should decide legal questions based on the law and the facts – not their policy preferences.
It is of no moment whether a judge likes or dislikes a policy matter. Sometimes judges adopt the view that they can order some policy outcome since the politically accountable branches failed to act. Their failure to act is a policy decision, not a gap for the judiciary to fill.
When Congress rejects a proposed policy, a decision has been made—just as surely as when they pass a bill into law. Courts have no right to impose the rejected choice.
Thus, federal district court judges are not empowered to fashion immigration policy, combat climate change, solve the opioid crisis, or run police departments. The Legislative and Executive branches—of federal and state government—are the constitutionally authorized branches to do these things, and if these branches haven’t done so to the satisfaction of an unaccountable judge, it’s not because they need judicial expertise or advice.
Usually, it’s because the problems are hard, there are many perspectives, and a single viewpoint has not yet prevailed among the majority. A federal judge is not a substitute for majoritarian resolution of difficult issues.
This kind of judicial activism is not a new problem, and I know that the Heritage Foundation has long commented upon, and opposed, it.
But a new tactic of judicial activism is emerging—call it judicial encroachment.
Courts are ignoring limiting guardrails and are allowing unprecedented reviews of governmental operations.
This trend is manifesting itself in several ways.
First, with increasing frequency, district courts are ignoring their role as forums of limited jurisdiction. They are ignoring the standing and justiciability doctrines, doctrines that limit matters that are appropriate for judicial review.
Federal courts are restricted to deciding ripe cases and controversies between individual, adverse parties. As the Supreme Court has held, “no principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.”
The requirements of standing, for example, exist “to prevent the judicial process from being used to usurp the powers of the political branches.”
Indeed, courts are even ignoring explicit congressional directives that strip them of jurisdiction to decide certain questions. For example, with respect to the designation of Temporary Protected Status, Congress has provided that “[t]here is no judicial review of any determination of the [Secretary of Homeland Security] with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection.”
Yet, after the Secretary justifiably decided to terminate the designation for individuals from four countries, a federal district court held it does have jurisdiction to review the decision.
A second manifestation of judicial encroachment is that district judges are reaching beyond the parties before them to shut down the entire administration of Executive branch policy nationwide. These orders—so-called “nationwide injunctions”—are not limited to the case or even to the judge’s judicial district, but are ordered to apply across the country.
In the first 175 years of this Republic, not a single judge issued one of these orders.
But, they have been growing in frequency and, since President Trump took office less than two years ago, 27 district courts have issued such an order.
I have talked about this extensively, but it is emphatically not the duty of the courts to manage the government or to pass judgment on every policy action the Executive branch takes.
As Justice Thomas wrote in his concurrence in the Supreme Court’s decision reversing lower courts and upholding the President’s travel order, nationwide injunctions “take a toll on the federal court system—preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the Executive branch.”
The third manifestation of judicial encroachment is the increasing authorization of invasive discovery into executive branch deliberations.
An increasing number of district judges are using purely legal disputes—which should be resolved by legal arguments alone—to depose Executive branch officials and order disruptive and extensive disclosure of their internal deliberations and documents.
These judges contend that all this information is necessary for the judge to decide whether the Executive branch official had—in the judge’s view—the wrong “motives” in taking what otherwise would be a lawful administrative action. But, in almost all of these cases, motive is irrelevant. It’s simply a legal question.
When a private party makes a legal challenge to Executive action, the final decisions made by the President and members of his Cabinet are fair game for litigation. But internal deliberations within the Executive branch are legally irrelevant in the vast majority of cases. Moreover, those deliberations are the constitutional prerogative of the Executive branch, and they deserve the same respect we afford to judges’ private drafts of opinions or conversations with law clerks.
What matters for legal purposes is the judge’s final product—the legal ruling. So, too, with most Executive branch decisions.
But an increasing number of judges are ignoring these boundaries and view themselves as something akin to roving inspectors general for the entire Executive branch.
For example, right now we are litigating one case where the district court has authorized a deposition of the Secretary of Commerce about the decision to reinstate a question on the Census. The court believes this is proper because it wants to probe the Secretary’s motives.
But the Census question—which has appeared in one form or another on the Census for over a hundred years—is either legal or illegal. The words on the page don’t have a motive; they are either permitted or they are not. But the judge has decided to hold a trial over the inner-workings of a Cabinet Secretary’s mind.
This is not the first time we’ve had to seek emergency appellate intervention to stop outrageous discovery.
In one of the DACA cases last year, the district court authorized a deposition of a senior counselor to Secretary of the Department of Homeland Security about confidential advice he and others had given to the Secretary. The Second Circuit, responding to an emergency petition, reversed the lower court and shut down the deposition midstream, and rightly so. It was a blatant violation of deliberative process and attorney-client privileges.
Once we go down this road in American government, there is no turning back.
The Constitution establishes an Executive branch—as Hamilton put it in Federalist 70—to avoid “a feeble execution of the government.” “Decision, activity, secrecy, and dispatch,” are the fundamental qualities of a competent executive power. And this power is undermined, Hamilton warned, when it is only “ostensibly” vested “in one man,” but is really “subject, in whole or in part, to the control and co-operation of others.”
The probing discovery of the kind ordered in the Census case is just the kind of intrusion Hamilton warned against. And we are seeing it in case after case. When a hot-button policy issue ends up in litigation, judges are starting to believe their role is to examine the entire process that led to the policy decision—to redo the entire political debate in their courtrooms. We have seen it in the litigation over the DACA rescission, the order about service of transgender individuals in the military, and the decision to terminate Temporary Protected Status.
Indeed, in the TPS case, the judge has gone so far as to order the production of a Cabinet Secretary’s handwritten notes taken during a high-level White House meeting.
As I noted earlier, judges are not forced to disclose the private advice they receive from law clerks. Nor are Senators and Representatives required to divulge the confidential counsel they receive from their staff. There are good reasons for this—decisionmaking is improved when the decisionmakers can have candid and open conversations. It is no different in the Executive branch.
This is why Congress, time and again, has recognized and protected in statute the confidentiality of Executive branch deliberations.
Those conditions have to be met. Those constraints have to be followed.
In the Freedom of Information Act, for example, Congress explicitly declared that Executive branch agencies should not be required to disclose their “decision-making process.” Likewise, in the Administrative Procedure Act, courts are only supposed to review the administrative record created by the agency. Courts cannot go beyond this record just because they suspect an agency decisionmaker favored a particular outcome.
If they could, extra-record review would be the rule rather than the rare exception.
These concepts of protecting Executive branch deliberations were not invented by FOIA or the APA. Rather, those statutes adopt long standing legal traditions.
If we allow district judges to depose lawyers at any agency or demand to see their private deliberations, then these laws and principles are eviscerated.
To make matters worse, the idea that any district judge can demand to see the deliberations of the Executive branch—will also inevitably have a chilling effect. Some will be reluctant to speak candidly. In fact, the Supreme Court has warned that “officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news.”
The Supreme Court has instructed, “[t]he high respect that is owed to the office of the Chief Executive … should inform the timing and scope of discovery.”
Simply put, discovery against the President of the United States should not be treated like discovery against the president of a company.
Subjecting the executive branch to this kind of discovery is unacceptable. We intend to fight this and we intend to win.
This is why we are taking these discovery fights to the Supreme Court in emergency postures. They are disrupting orderly governmental functions at great cost.
As with nationwide injunctions, we believe the Supreme Court should exercise its supervisory power and bring district courts back to this historical grounding.
This is no little matter. These are not just minor discovery disputes. These are fundamental questions about the structure of our government. These are fundamental questions about power. If the judiciary can subject the Executive branch to new, disruptive, and invasive reviews, the power of the judiciary is enhanced while the power of the Executive has been diminished. That is a tilt we cannot abide.
Executive branch officers do not work for the judiciary. We work for the President of the United States. Respect runs both ways.
Courts ignore these constitutional limits at their peril. Executive branch decisions are by nature, political—that is, they decide hotly contested policy questions that are often subject to passionate debate. This requires decisions on tough issues and in difficult circumstances.
If judges use their office to wade into these calculations, the American people will soon view them as political actors. That would be a great loss to our heritage of law. We don’t need political judges. It doesn’t matter whether they are Republicans, Democrats, or Independents. As Chief Justice Roberts testified, we just need judges to adjudicate disputes, calling the balls and strikes as they are, without taking sides in the game.
People respect courts because they are seen as neutral, apolitical forums where rules and law reign. Courtrooms are not legislative chambers, they are not bully pulpits. The litigants, in the course of zealous advocacy, may give impassioned pleas, and even hurl an insult or two.
But judges should maintain order, strive to adjudicate dispassionately, and avoid policymaking.
If they do not, then judges are fairly subject to the same criticism of other political leaders, and the same calls for their replacement.
All of us, in all three branches, must be vigilant to the Constitution’s design and to its most central feature: the separation of powers. That is what the American people rightly expect from those of us who inhabit the Executive, Legislative, and Judicial branches.
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Author: October 15, 2018