Department of Justice Seal
Prepared Remarks of Attorney General John Ashcroft
Federalist Society
November 12, 2004


Good morning, and thank you for that introduction. I am grateful for the opportunity to be with you today. The National Lawyers Convention of the Federalist Society comes at an extraordinary moment in our nation's history.

For three years now, we have waged a concerted, multi-front war against terrorism, at home and around the globe. We have worked to secure our beloved homeland and keep it safe from further attack. Overseas, we have liberated the people of two nations. We have killed or captured three-quarters of the senior leadership of al Qaeda.

And we are still on the hunt.

I have been proud to serve in these great endeavors over the past four years, at the helm of one of the most honorable and worthy institutions of this government, the United States Department of Justice.

Together, we have accomplished great things. From terrorism and drug smuggling to violent crime and corporate fraud, we have shown that we are not the slaves of circumstance, buffeted by events or trapped by the actions of others.

In defiance of all expectations, for three years since the worst attacks in our nation's history, America has not suffered another major terrorist attack. Violent crime is at its lowest rate in three decades. We have engineered double-digit reductions in the rate of rape and sexual assault, robbery, and assault. Rape and sexual assault are down 31 percent. Robbery has declined 31 percent. And assault has fallen 26 percent.

Gun-crime prosecutions are at a record high, and violent crimes committed with guns are at a record low. Drug supplies and drug use by the nation's youth are declining. Corporate criminals are facing justice, and integrity has been restored to our free markets.

Yet, even with these successes, a more important change has swept through the hearts of the citizenry. We have shown that a free people can determine its own destiny and shape the course of history.

Our struggle has sparked a new sense of seriousness and a renewed sense of admiration for our nation's founding vision and the liberties we are fighting to protect.

America is a nation distinguished by a simple but powerful belief that government does not grant us our rights. As the Declaration of Independence expresses so beautifully, every person is endowed by our Creator with inalienable rights, including the right to life, liberty, and the pursuit of happiness.

The genius of our Constitution is its recognition that it is the people who grant the government its powers. We believe that it is the people's values that should be imposed on Washington-not Washington's values on the people.

Government, in this founding vision, is the servant, not the master; the individual is morally free and morally responsible for his or her actions; and the role of law is to protect our lives and liberties.

Of course, from time to time, many of those toiling within the confines of the Beltway are apt to forget these fundamental truths about America-so I am thankful for all the men and women in this room who work to defend freedom in our nation's courts and corridors of power, who work to defend freedom in our federalist system, and who defend the freedom that flows from our constitutional divisions of power. You are a bulwark for liberty, fighting for the founding principles of a government accountable to a free and independent people.

The Federalist Society often emphasizes-and appropriately so-the limited powers granted to the federal government and the proper relation between federal and state authority under our Constitution.

And I want to focus my remarks today on the structural separation that governs relations between the branches of the federal government.

In particular, I want to comment on the critically important place that Article II occupies in our constitutional system, and the danger that we face as a nation from excessive judicial encroachment into functions assigned to the president under Article II.

Ours is a government of checks and balances, where each branch of government is assigned its proper function and no single branch dominates.

One of my esteemed predecessors, Bill Barr, is fond of saying that Article II was the true miracle of Philadelphia.

The Framers of our Constitution were determined to fix the deficiencies that had produced a weak and ineffective government under the Articles of Confederation. Article II of the new Constitution was the great solution they devised.

By establishing a single executive and focusing in the president all power to administer the laws and lead the nation, the Framers achieved two fundamental goals for our national government: unity and energy in the executive function.

These twin goals are essential to preserving freedom and security under our Constitution.

The unity of the executive power in the person of one individual, the president, is the great keystone of political accountability in our government. After all, the president and his chosen vice president are the only officers of the United States who are elected by all the people of the United States.

Some argued at the time of the Framing that concentrating the executive power in one person would invite abuses. But the genius of our Founders lay in understanding that, in a republic, the opposite is true.

As Hamilton explained in The Federalist No. 70, quote, "that the executive power is more easily confined when it is one: That it is far more safe there should be a single object for the jealousy and watchfulness of the people; and, in a word, that all multiplication of the executive is rather dangerous than friendly to liberty."

Madison made the same point in the first Congress. During debates over the President's power to remove executive officers, Madison spoke of the "great principle of unity and responsibility in the Executive department" which "was intended for the security of liberty and the public good."

It is fitting to contemplate these truths today, having just come through a historic national election. What greater example could we have of political accountability?

The major issues facing the nation were laid out before the people, who were given a full and open opportunity to judge the president's leadership-his response to the atrocities of September 11; his directives in the war on terrorism; his support for the PATRIOT Act; his commitment to appointing judges who strictly adhere to the rule of law; and the myriad other policy initiatives he has embraced.

The people spoke, and they decisively reaffirmed the president's policies and the direction of the country under his leadership.

The second great achievement of Article II is the energy of our unitary executive.

In the Virginia Ratifying Convention, Edmund Randolph, who would become our nation's first attorney general, argued, quote: "All the enlightened part of mankind agree that the superior dispatch, secrecy, and energy with which one man can act, renders it more politic to vest the power of executing the laws in one man."

Unlike Article I of the Constitution, which grants to Congress only limited and specifically enumerated legislative powers, Article II constitutes, as Hamilton described it, a "comprehensive grant" of all executive authority to the president, subject only to specified exceptions and qualifications, such as the Senate's participation in the appointment of principal officers and in the making of treaties.

One of the founders of the Federalist Society, Professor Steven Calabresi, put it well: "[T]he Constitution grants the President the authority to superintend the administration of federal law. There are no caveats. There are no exceptions."

The general grant of executive power in Article II ensures that the president has the necessary flexibility to act quickly, decisively, and effectively in responding to the innumerable unanticipated developments and threats that may confront the nation in this complex and dangerous world.

Ours may be a government of limited legislative powers, but it is not a weak government. The Founders saw to it that the president would be endowed with all necessary executive power to enforce the Constitution and laws and treaties of the United States, to protect our national security, and to pursue and uphold the values of freedom and justice around the world.

We have all seen the tremendous energy and resolve of President Bush and how decisively he has risen up to fight the awful scourge of terrorism facing America today, and all the other challenges we are called upon as a nation to meet.

In all of these important areas, the exercise of executive authority in the administration of the law involves some necessary portion of discretion in the executive.

And it is firmly accepted as essential in our constitutional system that reviewing courts should accord some corresponding degree of deference to the determinations made by the executive in administering the law.

The essential constitutional understanding is that courts are not equipped to execute the law. They are not accountable to the people. And they lack the knowledge and expertise essential for the effective administration of government.

The latitude and discretion reserved for the president under our Constitution must, of course, be greatest in the areas of national security and foreign relations-especially during times of war and national crisis.

The Supreme Court stated in the Curtiss-Wright case, quote:
"Not only . . . is the federal power over external affairs in origin and essential character different from that over internal affairs, but participation in the exercise of power is significantly limited. In this vast external realm with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation . . . ."
[United States v. Curtiss-Wright Corp., 299 U.S. 304, 318 (1936).]

Secretary of State Thomas Jefferson proclaimed during President Washington's administration that, quote, "[t]he transaction of business with foreign nations is Executive altogether. It belongs then to the head of that department, except as to such portions of it as are specially submitted to the Senate. Exceptions are to be construed strictly."
[Thomas Jefferson, Opinion on the Powers of the Senate Respecting Diplomatic Appointments (1790).]

I regret to say, however, that we are now confronted by a profoundly disturbing trend in our national political life: the growing tendency of the judicial branch to inject itself into areas of executive action originally assigned to the discretion of the president. These encroachments include some of the most fundamental aspects of the president's conduct of the war on terrorism.

These days, it seems some are unwilling to accept an idea fundamental to our Constitution: that there are certain decisions the Framers reserved to our elected and accountable president.

Yet, despite centuries of constitutional and judicial precedent, judicial activists refuse to acknowledge the constitutional design of our government, which gives deference to the president's interpretations of treaties. They have dismissed as somehow illegitimate or tainted the factual findings that the president makes in carrying out his duty to enforce our treaties. In some cases, they have found new and expansive private rights in treaties where they never existed. As the Federalist Society has shown in its own research and review, ideologically driven courts have disregarded and dismissed the president's evaluations of foreign policy concerns, in favor of theories generated by academic elites, foreign bodies, and judicial imagination.

These innovations conflict with the original vision of the Framers; they throw out the collective wisdom and humility of the judges of past generations; and they threaten the president's constitutional responsibility to defend American lives and liberties.

Since the time of the Jay Treaty, in the opening days of the Republic, it has been understood that it is the president who is given the essential and primary role in the making of all treaties and other international agreements for the United States. The president is the first judge of the meaning of those agreements and his interpretations are owed deference by the courts.

In defending President Washington's Neutrality Proclamation, for example, Hamilton declared that, quote, "[t]he President is the constitutional Executor of the laws. Our Treaties and the laws of Nations form a part of the law of the land. He who is to execute the laws must first judge for himself of their meaning."

Moreover, the idea that a treaty must be judicially enforceable if the executive branch views itself as bound by the treaty in the absence of implementing legislation flies against the centuries-old understanding of treaties.

As Chief Justice Marshall wrote in 1829, quote:

[W]hen the terms of the [treaty] import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department.
[Foster v. Neilson, 27 U.S. 253, 314 (1829).]

The danger I see here is that intrusive judicial oversight and second-guessing of presidential determinations in these critical areas can put at risk the very security of our nation in a time of war. The Supreme Court in Johnson v. Eisentrager stated the point succinctly, quote:

Executive power over enemy aliens, undelayed and unhampered by litigation, has been deemed, throughout our history, essential to war-time security. This is in keeping with the practices of the most enlightened of nations and has resulted in treatment of alien enemies more considerate than that which has prevailed among any of our enemies and some of our allies.
[Johnson v. Eisentrager, 339 U.S. 763, 774-75 (1950).]

The risks of invasive oversight and micro-management of executive functions by unelected courts have become all too familiar in other areas.

Take, for example, the essential executive function of running our federal prisons. Courts have frequently asserted jurisdiction over the smallest details of prison administration.

Recently, a court of appeals required a district court to hold a fact-finding hearing to determine whether the government has a legitimate basis to deny the use of federal funds to distribute pornography to prison inmates. (Yes, this is an actual case.)

Thankfully, the Supreme Court has warned that the judiciary is "particularly ill equipped to deal with" the "complex and intractable problems of prison administration." Yet, that message seems to be falling on deaf ears in some of our lower courts.

Our nation and our liberty will be all the more in jeopardy as the tendency for judicial encroachment and ideological micro-management are applied to the sensitive domain of national defense.

Dangerous and constitutionally questionable judicial action raises the stakes for our nation. It reminds us all how important it is for our nation and our freedoms to appoint men and women to the bench who respect the vision of the Framers, the rule of law, and the proper role of the judiciary in our government.

I am profoundly thankful that we have a president who understands and respects the Constitution and its division of powers. President Bush has shown time and again he is committed to appointing men and women of the highest quality-men and women dedicated to following the law as it is written, not as they wish it to be.

At the United States Department of Justice, chiseled into the massive stone walls are the words: "Law alone can give us freedom." For the Founding generation, these words were written on the heart. They inspired a small nation to take action and to sacrifice to defend liberty and the rule of law. These ideals coupled with courage and resolution changed the world, and brought freedom to millions yet to be born.

Our great cause of freedom-sustained by the fragmentation of power and the separation of authority-must be preserved. This great cause-this noble story of America-now falls to our generation.

We must prove ourselves worthy of this legacy. It is up to us to protect freedom for our children and the generations to come.

In this great cause, I know that we will pass this test. Together, we will succeed and freedom will reign.

God bless you and God bless America.