Justice News

Attorney General Sessions Delivers Remarks at the Heritage Foundation’s Legal Strategy Forum
Washington, DC
United States
~
Thursday, October 26, 2017

Remarks as prepared for delivery


Thank you for that introduction.

 

President Trump spoke here a little more than a week ago.  In eloquent terms, he talked about the legal traditions handed down to us which are the “legacy” of our Founders.  He spoke of the urgent necessity to “rededicate ourselves to the defense of our God-given rights” and he has done more than talk.  He is nominating truly outstanding judges for our courts who understand these principles.  I am very proud of this judicial record and to serve in his Justice Department.

 

On the law, he couldn’t be more correct.  We must above all vigorously defend the inalienable rights that are part of our heritage and especially religious liberty and freedom of speech.  These are the very first freedoms the Founders put in the Bill of Rights—and not by accident.  They are first because our freedom to worship and to speak our minds are at the core of what it means to be free.

 

Our Founders believed that reason is the best means to truth and justice.  Reason requires discourse and, frequently, argument.  The Father of our Constitution, James Madison, said, in protest of the Alien and Sedition Acts—the speech codes of his day—that freedom of speech is “the only effectual guardian of every other right.”

 

In every generation, there have been those who say that certain speech is not deserving of protection.  Many of these people are well-intentioned.  But, as Justice Oliver Wendell Holmes once wrote: “If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us, but freedom for the thought that we hate.”

 

When it was the Federalists against the Anti-federalists, Abraham Lincoln against Stephen Douglas, Martin Luther King against George Wallace, and in so many episodes in our history, speech led Americans to better decisions and a more just society.

 

Under President Trump’s strong leadership, this Department of Justice is doing its part to protect this right.  We will enforce federal law and protect the Constitutional right to free expression.  For example, we recently filed a Statement of Interest in two campus free speech cases, and we will be filing more in the weeks and months to come.

 

Incidentally, one of those cases arose when a college student was prevented from proclaiming his Christian faith.  This case is doubly important because the restrictions impact both speech and the free exercise of religion.

 

The Founders knew that religion is not an accident of history or a passing circumstance.  It is an inalienable human right that pre-exists the Constitution and is an essential component of liberty itself.

 

In his farewell address, President George Washington famously called religion the “indispensable support of political prosperity [and a] great pillar of human happiness.”  He warned, “let us with caution indulge the supposition that morality can be maintained without religion...”  I would go further and suggest that a core principle of our founding was that there is an objective truth and that good policy was to be founded on truth.  That is reflected from jury trials to speech protections in Congress to freedom of the press.  Those rights were the protected mechanisms to ascertain truth.

 

It was faith and a belief in morality and truth that inspired Reverend Martin Luther King, Jr. to march and to use the power of words to make this country better.  He said that we "must not seek to solve the problem" of segregation merely for political reasons, but "in the final analysis, we must get rid of segregation because it is sinful."  It undermined the promise, as he described it, that "each individual has certain basic rights that are neither derived from nor conferred by the state...they are gifts from the hands of Almighty God."  Such concepts are a key part of our legal and cultural heritage.

 

In recent years, the cultural climate has become less hospitable, sometimes even hostile, to people of faith and to expressions of religious belief.  Many Americans have felt that their freedom to practice their faith has been under attack.

 

I believe that the 2016 election was significantly impacted by this concern and that this motivated many voters.  President Trump made a promise that was heard and well-received. 

 

Since he was elected, the President has directed me to issue guidance on how to properly interpret and apply the protections for religious liberty in the First Amendment and other federal laws.  I issued that guidance earlier this month.  You can be sure this Department of Justice will defend those principles resolutely.

 

The guidance makes clear that religious exercise is not just some policy preference: it’s an inalienable right.  We do not give up our religious freedom when we are at work or at school, when we interact with the federal government, or when we speak together in the public square.

 

The guidance provides many more details about our rights, but I want to be clear about something: the guidance does not change the law.  No, the bedrock of our legal protections were put in place by our Constitution and by the people’s representatives in Congress.

 

Acting on these principles, the Department earlier this week settled many civil cases with 87 plaintiffs regarding the previous administration’s birth control mandate.

 

And today we announced that we settled two cases brought by groups whose tax-exempt status was significantly delayed by the Internal Revenue Service based on inappropriate criteria. It should also be without question that our First Amendment prohibits the federal government from treating taxpayers differently based solely on their viewpoint or ideology.  There is no excuse for this conduct. Hundreds of organizations were affected by these actions, and they deserve an apology from the IRS.  We hope that today’s settlement makes clear that this abuse of power will not be tolerated.

 

These cases against the IRS shouldn’t have happened in the first place.  They never would have been necessary if government had acted properly.

 

But this Department of Justice is restoring fairness and neutrality by restoring the rule of law in many other areas.  Let me mention a few areas of importance – but there are more.

 

For example, I have prohibited so-called third party settlements. Under the last Administration, the Department repeatedly required settling parties to pay settlement funds to third party community organizations that were not directly involved in the litigation or harmed by the defendant’s conduct. I believe that when the federal government settles a case against a corporate wrongdoer, any settlement funds should go first to recompense the victims and then to the U. S. Treasury—not to bankroll third-party special interest groups or the political friends of whoever is in power.  The Constitution nowhere gives unelected attorneys or their higher ups the right to effectively appropriate and distribute funds to their chosen few.

 

The Department has also provided legal counsel to this administration in favor of ending several unlawful policies from the previous administration, including subsidies to insurance companies that were not appropriated under the Affordable Care Act.  Once again, the Executive Branch cannot spend money not appropriated by Congress.  And, I am proud to say President Trump put an end to it. 

 

A Cabinet Secretary is not empowered to effectively wipe off the books whole sections of immigration law duly passed by Congress especially when Congress refused to change it as the official or the President may have desired.  In fact, in the DACA policy, individuals illegally here under the current law were given certificates of lawful status, work permits, and the right to participate in Social Security.  No matter what one thinks, our policy should be our constitutional order is under threat when the legislative process is stiff-armed.  Once again, President Trump put an end to it.

 

The Department’s Office of the Solicitor General filed an amicus brief in support of a Colorado baker who was sued for refusing to bake a cake for a same-sex wedding. But, as you all know well, the First Amendment protects the right to the free exercise of religion for all Americans.  Although public-accommodations laws serve important purposes, they—like other laws—cannot be interpreted to undermine the individual freedoms that the First Amendment guarantees.  That includes the freedom not to create expression for ceremonies that violate one’s religious beliefs.

 

We have filed briefs defending lawful state voter identification laws and redistricting plans.

 

We have responded to and are reviewing complaints from a coalition of 64 Asian-American associations that alleges racial discrimination against Asian-Americans in a university’s admissions policy and practices.  A university cannot discriminate against applicants on the basis of their race.

 

And we are no longer allowing state and local jurisdictions to nullify federal immigration law if they want to receive our law enforcement grants.

 

I could go on and on.  We are committed to following the will of the people that is expressed in our laws and working every day to that end.

 

But that brings me to a final point: how we preserve our rights.  Our rights are best preserved by the structure of the Constitution the Founders established—most importantly the separation of powers.  Co-equal branches of government ought to respect one another as co-equal branches.

 

As you all know well, some judges have failed to respect our representatives and Congress and the Executive Branch.  One particularly striking example was the federal judge in Brooklyn who heard argument on a challenge to the federal government’s wind down of DACA. 

 

That is a straightforward question of law.  But rather than address that question, the court said the government “can’t come into court to espouse a position that is heartless.”   Not unlawful, but “heartless.” 

 

With respect: it is emphatically not the province or duty of courts to say whether a policy is compassionate.  That is for the people and our elected representatives to decide.  The court’s role is to say what the law is.

 

A judge’s comments on policy like this are highly offensive, and disrespectful of the Legislative and Executive Branches.  Judges have the solemn responsibility to examine the law impartially.  The Judiciary is not a superior or policy-setting branch.  It is co-equal.  Those who ignore this duty and follow their own policy views erode the rule of law and create bad precedents and, importantly, undermine the public respect necessary for the courts to function properly.

 

This is especially problematic when district courts take the dramatic step of issuing activist nationwide injunctions—orders that block the entire United States government from enforcing a statute or a presidential policy nationwide.  Scholars have not found a single example of any judge issuing this type of extreme remedy before the 1960s.  But today, more and more judges are issuing these lawless nationwide injunctions and in effect single judges are making themselves super-legislators for the entire United States.  We have nearly 600 federal district judges in the United States—each with the ability to issue one of these overreaching nationwide orders. 

 

That makes the need for judges to stick to the law even more important.  A single judge’s decision to enjoin the entire federal government from acting is an extreme step, and too often, district courts are doing it without following the law.   Exercising this awesome power because of a political disagreement is all the more unacceptable.  The Constitution gives judges no right to veto a President’s actions because they disagree with him on policy grounds.

Let me close on a more optimistic note.  The media focuses on decisions that go against us.  But we also have important wins.  Numerous judges—and two district courts—upheld the President’s Executive Order temporarily suspending immigration from certain countries.  And the Supreme Court has now vacated both of the appellate court rulings against us.  The Second Circuit also just issued a favorable ruling in a case challenging the wind-down of the DACA program.  Although some district courts may initially rule against us, I am confident that our positions will be vindicated in the court of appeals and, if necessary, in the Supreme Court.  Because we are right.

 

The Department of Justice respects the separation of powers in all our work, and we follow the law as written.  In every brief we file and every argument we make, we urge the courts to do the same.  Whether the question involves religious liberty, free speech, or any other matter, this is what our Constitution demands—and it’s the best way to preserve our God-given rights.  Thank you.

Updated October 26, 2017