Taking a stand

With Christmas just two days away, it’s time to eschew the usual fare in this space – policy analysis and political commentary that often focuses on errors and shortcomings – and end the year on a positive note. See, e.g., the listing of holiday blog entries (starting in 2012) on the Events page of this website.

This year’s essay is about three great speeches. One was not witnessed by any living person, but is inscribed in stone (at the Lincoln Memorial); the second happened nearly four decades ago, but is still remembered by some who were in the audience (your faithful scribe included); the third was delivered last month and resonated with many. So despair not, for all hope is not lost.

Many people give speeches that are half listened to and soon forgotten. What made the three speeches that we have selected stand out from the rest? We’ll mention various indicia of excellence in discussing these speeches, but the hallmark of greatness is a constructive vision of the future that isn't designed to promote personal or tribal interests.

I. The Gettysburg Address - Four months after the pivotal Union victory near Gettysburg, PA, a group of notables and supporters gathered in a portion of the battlefield that was to be dedicated as a military cemetery (it’s known today as the Gettysburg National Cemetery). The date was November 19, 1863.

There is no recording of the event, only photos including one in which President Abraham Lincoln can be seen among the throng. People arrived by the means of transportation available at the time including a train from Washington, DC. The speakers included Edward Everett, an academic figure and popular orator, who reportedly gave a two-hour speech before Lincoln took his turn.

Great speeches don’t need to be long, and after hearing from Mr. Everett the audience may well have appreciated the brevity of the president’s remarks. They are all of 270 words, and even with breaks for applause probably ran less than five minutes. It’s not true, however, that Lincoln jotted down the speech on the back of an envelope during the train ride up. He reportedly wrote it the day before and produced several drafts in the process. Here’s a reconstructed
transcript and a photo of the scene.

What was notable about Lincoln’s speech? It eloquently acknowledged, but managed to transcend the horrors of war. There is no mention of a Union victory or Confederate defeat, only of a great civil war that was being fought over a fundamental principle – “that all men are created equal” – and would necessarily be brought to a conclusion.

It is rather for us to be here dedicated to the great task remaining before us — that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion — that we here highly resolve that these dead shall not have died in vain — that this nation, under God, shall have a new birth of freedom — and that government of the people, by the people, for the people, shall not perish from the earth.

Enough said!

II. A Rare Opportunity - Federal Reserve Chairman Paul Volcker spoke to the Tax Foundation at a New York City hotel on December 3, 1980. Having served as president of the Federal Reserve Bank of New York, he had an insider view of the nation’s disturbing pattern of rising inflation & stagnant growth (aka stagflation). And about four months earlier he had taken the helm of the Federal Reserve Board of Governors – following nomination by President Carter and confirmation by Congress - giving him the power to address these issues. Then Ronald Reagan won the presidential election in November, so Chairman Volcker would soon be working with a new economic team.

For the Tax Foundation to invite a central banker to speak on monetary policy rather than tax policy was a bit unusual, as Volcker acknowledged at the outset.
Text, p. 1.

I must confess that upon first being approached about this occasion, it struck me as anomalous that, with all the debate and rethinking about tax strategy now going on, the Tax Foundation turned to a man principally concerned with monetary policy.

But combatting inflation was a topic of considerable importance and concern at the time, and the audience was all ears. Bear in mind that the annual inflation rate for the past ten years (1971-1980) had averaged 8.1%, reducing the purchasing power of a dollar by some 54% in a decade. And worse, the inflation rate had hit 13.3% in 1979 and 12.5% in 1980, with no turnaround in sight.
Inflation rate history by year, balance.com, accessed 12/10/19.

As the speaker perceived the situation, these high inflation rates would necessarily be accompanied by high interest rates with dire consequences for the US economy.
Text, p.1. (Having had the benefit of three years of financial management in Brazil, during an era of 30-40% annual inflation with local currency interest rates to match, your faithful scribe was in full agreement.)

. . . I believe we have a rare opportunity in the months immediately ahead to come to grips, in a fundamental and decisive way, with the inflationary problem that lies at the heart of so much of our economic malaise.

Nor was there any reason to expect easy solutions, for problems that had long been festering could not be solved without changing the perceptions and expectations that had caused them in the first place.
Text, p. 2.

Let us not be beguiled into thinking there are quick and painless solutions to a set of economic problems that have been decades in the making, that in greater or lesser degree have become endemic to Western industrialized nations, and that grow out of deeply ingrained public and private policies, attitudes and expectations. Success will have an enormous payoff in re-building a solid foundation for growth and prosperity. But it cannot be achieved by a nation pulling back from hard choices.

The primary tool at the Fed’s disposal was to hike short-term interest rates, which it was capable of doing aggressively.
Text, p. 10.

I know that, in concept, a case can be made that restraint on money and credit alone, sustained long enough and strongly enough, could control inflation, and thus lay the ground for renewed growth.

But it would be best to use the other tools of economic policy available, including tax cuts and control of government expenditures, thereby achieving the desired results more quickly and surely. Otherwise, there would inevitably be demands for striking a “reasonable” balance between curbing inflation and promoting growth.
Text, pp. 10-11.

Surely, the prospects for success will rest on visible evidence that policies across the board are moving in a coherent and mutually reinforcing way. Then, indeed, the potential collision between monetary restraint and growth will be minimized and expectations will, sooner rather than later, turn in a more constructive direction.

Although it’s not evident from the available text (as prepared for delivery), my recollection is that Volcker clearly said the Fed would keep raising interest rates until inflation was tamed even if Congress and the new administration didn’t exercise restraint in the fiscal area. The man had guts, no question about it!

As it happened, the Fed did indeed follow a hawkish policy on interest rates, hiking the federal funds rate to a peak of over 20% - with unwavering support from President Reagan – even though the deficits continued because the president couldn’t persuade Congress to cut spending. The immediate economic consequences were painful. Paul Volcker: The man who helped Reagan save the economy, Robert Merry, americanconservative.com,

By November 1982, as voters prepared to go to the polls for that year’s midterm elections, unemployment had risen to 10.8 percent. The country was headed for a 1.44 percent decline in GDP in 1982. When Republicans implored Americans to “stay the course,” Democrats retorted that it was more like “stay the curse.” Republicans [lost 26 House seats and a Senate seat in the mid-term elections.]

By 1984, however, the economy was booming as it had not done since the "soaring sixties." Reagan would be reelected in a landslide!

Inflation fell below 4 percent in 1983, which stifled many of the most strident anti-Volcker voices in the land. America under Reagan’s leadership also rebounded from the 1982 recession with a 7.9 percent surge in GDP. Subsequent years brought growth rates of 5.58 percent, 4.18 percent, 2.9 percent, 4.48 percent, and 3.8 percent. And those growth rates were achieved with minimal inflation throughout the remainder of the 1980s and beyond.

What made Volcker’s 12/3/1980 speech great? The Federal Reserve chairman had the courage to identify a tough issue, say clearly what he intended to do about it, and subsequently follow through. He understood and appreciated other viewpoints, but was prepared to put his own name and reputation on the line. And unlike many advocates of radical change (e.g., trying to run the electric power grid with wind power, solar power and batteries), his ideas were logical and demonstrably succeeded when they were put into practice.

III. The Constitution’s Approach to Executive Power – Attorney General William Barr delivered the 19th annual Barbara K. Olson memorial lecture at the Federalist Society’s National Lawyers Convention last month. Excerpts have been replayed on Fox News, etc., and the text (as prepared for delivery) is posted on-line. Department of Justice, 11/15/19.

Barbara Olson was the wife of Ted Olson, an eminent legal advocate who among other things led the Republican legal team in the Florida vote counting litigation that determined the outcome of the presidential election in 2000. A notable attorney in her own right, Barbara later went down with the hijacked airplane that was flown into the Pentagon on 9/11. The speaker remembered her as follows.

I had the privilege of knowing Barbara and had deep affection for her. I miss her brilliance and ebullient spirit. It is a privilege for me to participate in this series, which honors her.

Mr. Barr had only been serving as attorney general in the Trump administration since February 2019, but he was a seasoned hand in the role having previously filled it in 1991-93 under Bush 41. (The only other person to ever serve as the AG twice was John Crittenden before the Civil War. Encyclopedia Britannica,

Obviously feeling at home with this conservative legal group, Barr went on to acknowledge its traditions and influence.

The theme for this year’s Annual Convention is “Originalism,” which is a fitting choice — though, dare I say, a somewhat “unoriginal” one for the Federalist Society. I say that because the Federalist Society has played an historic role in taking originalism “mainstream.” While other organizations have contributed to the cause, the Federalist Society has been in the vanguard.

Graceful acknowledgments followed for several conservative icons: President Reagan – Ed Meese – President Trump’s judicial appointees, e.g., Justice Gorsuch, Justice Kavanaugh, and “many superb court of appeals and district court judges.” Then the speaker turned to his topic – the Constitution’s approach to executive power.

I deeply admire the American Presidency as a political and constitutional institution. I believe it is, one of the great, and remarkable innovations in our Constitution, and has been one of the most successful features of the Constitution in protecting the liberties of the American people. More than any other branch, it has fulfilled the expectations of the Framers.

Unfortunately, over the past several decades, we have seen steady encroachment on Presidential authority by the other branches of government. This process I think has substantially weakened the functioning of the Executive Branch, to the detriment of the Nation.

While the Revolutionary War was fought to win independence from a country nominally ruled by a king, real political power in England had increasingly been assumed by Parliament. Also, things didn’t get off to a great start under legislative rule in this country.

[By 1787], the Framers had come to appreciate that, to be successful, Republican [term is used descriptively; there was no Republican Party in those days] government required the capacity to act with energy, consistency and decisiveness.

Not for nothing was it decided that an executive branch was needed, correcting one of the major deficiencies of the Articles of Confederation, and that this branch should be headed by a single person (the president) rather than by a council. Thank you, Alexander Hamilton and also, although he was posted to France during the Constitutional Convention, Thomas Jefferson.

Progressive revisionists have attacked “the unitary executive theory,” which supposedly represents an effort “to justify Executive power of sweeping scope.” But this misses the basic point of Article II: “whatever the Executive powers may be, they must be exercised under the president’s supervision.” Accordingly, Congress should not attempt to vest the power to execute the laws in anyone beyond the control of the president.

The speech goes on to suggest that both Congress and the courts have been trying to undermine the power and influence of the executive branch, and not in a way that corresponds to how the founders intended that the checks and balances built into the Constitution would work.

#CONGRESS – Immediately after President Trump won election, an explicit strategy of “Resistance” was launched by his opponents. The idea was to “[use] every tool and maneuver available to sabotage the functioning of the Administration.” The basic premise was “that [this] government is not legitimate.”

•The Senate systematically opposed and drew out the approval process for every appointee to prevent the president from building a functional government. As of September of this year, the Senate had been forced to invoke cloture on 236 Trump nominees vs. 17 times during Obama’s first term. “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 largely abdicated its core function of legislation by either failing to act or punting on the details “by making broad delegations to a modern administrative state that they increasingly seek to insulate from presidential control.” Creation of the Consumer Financial Protection [Bureau], "a single-headed independent agency that functions like a junior varsity president for economic regulation," is just one of many examples.

•With lots of time on its hands, the practice has developed – particularly for the opposition party – to drown the Executive Branch in “oversight” demands for testimony and documents. And this “constant harassment” ignores the need of the Executive Branch for “confidential communications and a private internal deliberative process.” Notice, by the way, that there are no comparable disclosure requirements (e.g., FOIA) for either Congress or the courts.

•Nonstop accusations that this administration is “shredding” constitutional norms and waging a war on the rule of law are unjustified. This administration’s policy initiatives and proposed rules “have transgressed neither constitutional nor traditional norms, and have been amply supported by the law and patiently litigated through the Court system to vindication.” Its record actually seems “a bit tame” when compared to some of the Obama Administration’s aggressive exercises of Executive power, e.g., instituting the DACA program based on a refusal to enforce broad swathes of immigration law.

• . . . conservatives tend to have more scruple over their political tactics and rarely feel that the ends justify the means. [That] puts conservatives at a disadvantage when facing progressive holy [war], especially when doing so under the weight of a hyper-partisan media.”

#COURTS – (1) Appointed themselves as the ultimate arbiter of the separation of powers disputes between Congress and the Executive Branch. (2) Claimed authority to inquire into presidential motivation and substitute their own judgment if appropriate, or to assume direct control over decisions heretofore considered to be at the core of presidential power.

As Justice Scalia observed, the Constitution gives Congress and the president many “clubs with which to beat” each other. But the list doesn’t include running to the courts to resolve their disputes. And to the extent that the courts have taken on this kind of role, they certainly have not distinguished themselves.

Re expanding the scope of judicial review, judges seem to have lost sight of the fact that “many critical decisions in life are not amenable to the model of judicial decision-making” because “they cannot be reduced to tidy evidentiary standards and specific quantums of proof in an adversarial process.” Prompt decisions required – incomplete and uncertain information – competing risks. Who can say with assurance that the decisions of unelected judges about national security, foreign affairs, etc. are better than those of the president and his advisers?

All of which has been hugely magnified by another judicial innovation – the nationwide injunction – which was first used in 1963, and sparely thereafter — until recently. Since President Trump took office, district courts have issued over 40 nationwide injunctions against the government – vs two nationwide injunctions in President Obama’s first two years (period during which his party controlled both houses of Congress). Thus, “virtually every major policy of the Trump Administration has been subjected to immediate freezing by the lower courts.”

As a classic case of the potential harm, consider the suspension of DACA rescission (an administrative decision to suspend a program instituted without the benefit of legislation during the Obama administration) by a district judge in northern California. This order blew up bipartisan negotiations on what legislative measures would replace DACA, and it also precipitated a humanitarian crisis on the southern border. Only this week did the Supreme Court finally hear arguments on the legality of DACA rescission, which will clear the way for resolution of the matter.

Another blatant and consequential usurpation of Executive power played out under the administration of Bush 43, culminating with the Court’s 2008 decision in Boumediene. The upshot was to empower captured enemy combatants to challenge their continuing detention, a result the speaker characterizes as “insane.” Kill apparent terrorists with a drone missile, no problem, but if they are captured then “the military is tied down in developing evidence for an adversarial process and must spend resources in interminable litigation.”

* * * * *

AG Barr’s speech on the American presidency makes a powerful point: attempts to hem the president and his subordinates in on every issue that comes up are corrosive – particularly when neither of the other branches of government is designed or equipped to run the massive government establishment.

Cynics may protest, however, that it’s sad to see the top legal officer in the government acting like an advocate for the president by parroting his talking points. A great speech, really?

That’s surely a valid question, particularly now that the House Democrats have followed through on their previously expressed intention to vote articles of impeachment against a supposedly rogue president. But the attorney general undeniably deserves credit for his courage in taking on the critics, and what’s more this speech doesn’t come across as a partisan pitch.

•A well-reasoned and longstanding basis for preferring a powerful executive branch is provided; these are not principles that the current president and his supporters invented.

•Far from characterizing Trump as blameless, the speaker freely acknowledges that unorthodox behavior – the president “has certainly thrown out the traditional Beltway playbook,” but he “was upfront about that beforehand, and the people voted for him” – has contributed to current controversies.

•It’s noted that efforts of the other branches to exceed their proper bounds may have undesirable and unpredictable consequences in the future.

•The speech ends with a recitation of turning points in US history, which were typically resolved based on presidential leadership. A strong presidency will be needed for future crises as well.

In so many areas, it is critical to our Nation’s future that we restore and preserve in their full vigor our Founding principles. Not the least of these is the Framers’ vision of a strong, independent Executive, chosen by the country as a whole.

Looking back, years from now, let’s hope it will be clear that Americans understood and responded to this message.

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