https://www.justice.gov/opa/speech/attor...al-lecture

Interesting thoughts by AG Barr:

"...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...."

"...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...."

Need some leaders in Congress who pay attention to Barr's speeches.

Should be a must read for any US government class.

"...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...."

The US President is the least powerful chief executive in the world.

Consider the following restrictions on the US President, most of which don't exist in any other country:
1) The US President can't sign legally binding treaties. That power resides with the Senate.
2) The US Legislature can override a Presidential veto with a 2/3 vote
3) The US President can't appoint members of his own cabinet without Senate approval.
4) The US President can't pass domestic legislation without first going through TWO legislative bodies. Most democracies only have one legislative body, or (as in the UK) the second legislative body is mostly ceremonial.
5) In most Democracies, the Chief Executive is chosen by the largest party in the legislature. In the UK, Canada, and Australia, the Prime Minister nearly always has a majority in the legislature. How often does the US President deal with a legislature that is controlled by his own party?
6) The US President is constrained by both common law and a written Constitution. Most other Democracies abide by Civil Law, which means that new laws can override old laws as long as the new laws were properly passed. The UK has common law, but lacks a written constitution to constrain the President's actions.
7)The US President is constrained by judicial review. Judicial review does not exist in most countries - it was invented by the Supreme Court in 1803 in Marbury v Madison. Judicial review makes the US judicial system the most powerful judicial system in the world.

In sum, in most other countries the only thing preventing a Chief Executive from doing whatever he wants is rebels from within his own political party. (Or in the case of continental European countries with more than 3 large political parties, he's constrained only by other political parties in the ruling coalition).

Here is a counterpoint from the Wall Street Journal last month about the role of the executive in the UK. The bolded text sums up the main points.

https://www.wsj.com/articles/british-pol...1569538342

Quote:British Politics Is Working Too Well
Free states don’t act on small majorities. They ask what voters really want and build broad support.


Conventional wisdom holds that the United Kingdom is in the throes of a messy political collapse as Brexit debates grind on and it becomes harder to tell who’s in charge, let alone what’s coming next. Conventional wisdom, as usual, is wrong. Britain’s problem is that its political system is working too well.

You’d be forgiven some skepticism..... Selected as Conservative leader on a pledge to unite the fractious party behind a Brexit-or-bust program, Mr. Johnson instead has lost his hair’s-breadth majority in Parliament through resignations and expulsions from the party. He has yet to win a parliamentary floor vote on anything important, including his two bids to topple his own unpopular administration in order to vie for a new majority in a general election—which he might manage to lose....... The main opposition, the Labour Party—which at its annual convention this week failed for the third year running to coalesce behind a single, coherent Brexit platform—has blocked a new election because it fears it might still fall short of Mr. Johnson. Other opposition parties also fear ousting Mr. Johnson because they trust Labour’s quasi-Marxist leader, Jeremy Corbyn, even less. The main result is an “opposition” that now controls a majority of seats in Parliament but can’t say what it wants, only what it doesn’t. Don’t ask who’s running the show. Apparently no one is.

This, counterintuitively, is what a functioning political system looks like.

The conceit we’ve inherited from the Progressive era is that government ought to be judged by the decisiveness and efficiency with which it acts. Brexiteers themselves, for all their talk about British traditions of governance, tap into this sentiment when they complain that Parliament hasn’t gotten on with implementing the verdict of the 2016 referendum.

Yet an older and deeper understanding of good governance recognizes that what matters to a society is not how quickly or comprehensively the state acts, but whether a government rallies broad support for whatever it does or doesn’t do. It’s a high bar—a simple majority won’t do, as the deepening controversy over a 52% referendum victory for Brexit shows—and the safest default option for a government that can’t meet the threshold is paralysis.

That’s precisely what British politics is delivering now. The most important manifestation is the omnipresent question of whether voters knew what they were voting for in 2016. It’s fair, up to a point, to suggest that this accusation from Remainers—that the referendum is tainted because voters did not know Brexit might happen without a deal, or weren’t asked exactly what sort of Brexit they’d want, or some other defect—is a rearguard action to delegitimize a historic democratic vote.

But delegitimizing that sort of democratic exercise is what politics in a free country does—all the time. British parties are elected on manifestos they routinely fail to deliver in at least some particulars. American presidents are elected by landslides and then struggle to advance their agendas without terminal meddling from Congress. The main purpose of the Anglo-American system, properly understood, is to ask voters again and again whether they really want what they claim they want, and to give it to them only once they’re quite sure.

British lawmakers aren’t wrong to worry about whether Leave voters really envisioned departure without a trade deal with the EU in place first, or whether those voters envisioned the sort of profound economic disruption Mr. Johnson’s government itself seems to fear based on recently leaked planning documents. In asking, those lawmakers are only doing their job, and they’re doing it surprisingly well.

Outstanding, should be required reading. I wonder when Barr will be impeached.

(11-18-2019 10:42 AM)Captain Bearcat Wrote:  Here is a counterpoint from the Wall Street Journal last month about the role of the executive in the UK. The bolded text sums up the main points.

https://www.wsj.com/articles/british-pol...1569538342

Quote:British Politics Is Working Too Well
Free states don’t act on small majorities. They ask what voters really want and build broad support.


Conventional wisdom holds that the United Kingdom is in the throes of a messy political collapse as Brexit debates grind on and it becomes harder to tell who’s in charge, let alone what’s coming next. Conventional wisdom, as usual, is wrong. Britain’s problem is that its political system is working too well.

You’d be forgiven some skepticism..... Selected as Conservative leader on a pledge to unite the fractious party behind a Brexit-or-bust program, Mr. Johnson instead has lost his hair’s-breadth majority in Parliament through resignations and expulsions from the party. He has yet to win a parliamentary floor vote on anything important, including his two bids to topple his own unpopular administration in order to vie for a new majority in a general election—which he might manage to lose....... The main opposition, the Labour Party—which at its annual convention this week failed for the third year running to coalesce behind a single, coherent Brexit platform—has blocked a new election because it fears it might still fall short of Mr. Johnson. Other opposition parties also fear ousting Mr. Johnson because they trust Labour’s quasi-Marxist leader, Jeremy Corbyn, even less. The main result is an “opposition” that now controls a majority of seats in Parliament but can’t say what it wants, only what it doesn’t. Don’t ask who’s running the show. Apparently no one is.

This, counterintuitively, is what a functioning political system looks like.

The conceit we’ve inherited from the Progressive era is that government ought to be judged by the decisiveness and efficiency with which it acts. Brexiteers themselves, for all their talk about British traditions of governance, tap into this sentiment when they complain that Parliament hasn’t gotten on with implementing the verdict of the 2016 referendum.

Yet an older and deeper understanding of good governance recognizes that what matters to a society is not how quickly or comprehensively the state acts, but whether a government rallies broad support for whatever it does or doesn’t do. It’s a high bar—a simple majority won’t do, as the deepening controversy over a 52% referendum victory for Brexit shows—and the safest default option for a government that can’t meet the threshold is paralysis.

That’s precisely what British politics is delivering now. The most important manifestation is the omnipresent question of whether voters knew what they were voting for in 2016. It’s fair, up to a point, to suggest that this accusation from Remainers—that the referendum is tainted because voters did not know Brexit might happen without a deal, or weren’t asked exactly what sort of Brexit they’d want, or some other defect—is a rearguard action to delegitimize a historic democratic vote.

But delegitimizing that sort of democratic exercise is what politics in a free country does—all the time. British parties are elected on manifestos they routinely fail to deliver in at least some particulars. American presidents are elected by landslides and then struggle to advance their agendas without terminal meddling from Congress. The main purpose of the Anglo-American system, properly understood, is to ask voters again and again whether they really want what they claim they want, and to give it to them only once they’re quite sure.

British lawmakers aren’t wrong to worry about whether Leave voters really envisioned departure without a trade deal with the EU in place first, or whether those voters envisioned the sort of profound economic disruption Mr. Johnson’s government itself seems to fear based on recently leaked planning documents. In asking, those lawmakers are only doing their job, and they’re doing it surprisingly well.

I agree, however in cycles such as the one we've been in for the past 25 years or so is the opposition strategy has evolved into blockade and anyone breaking the blockade gets primaried and shipped out for someone more radical. Over the past two and half decades, bills that could get a bipartisan majority have been buried because they lack the votes to pass on a single party vote. It's ******* terrorism by each party.