[applause] president of the society and delighted to welcome the memorial election. This memorial elector started shortly after 9 11. Just like it started, after 9 1 . [applause] the inaugural lecture reminded us of what it means to be an american and have the legal tradition is a critical part of our identity of americans. That reminder is more crucial today and they understood this connection. We want the series to remind lawyers of it so they foster legal principles that advance individual liberty and personal responsibility and the rule of law. Other lectures have included justice scalia, chief justice roberts, Vice President cheney, judges can star, robert, ray randolph, edith jones, doug ginsberg, jeff sodded in judge neil gorsuchs. Also former attorney general and white house counsel, and senators tom and ben. That brings us to todays lecture. It is my privilege to introduce for this years the honorable william barr attorney general of the United States. People serve in government for a wide variety of reasons in addition to Public Service. There is power, there is a stepping stone to higher office, or the prestige of having a position than the honor when received while serving the country an important role. But in the current case, it is really difficult to see how most of the selfserving incentives apply. But when this still does is performing a valuable Public Service. Indeed much of his career has been spent performing exactly such Services Going back to his early days with the cia. He received his ma from columbia in chinese studies and that may come in handy. [laughter] his gw from george washington. He clerked for the underrated judge malcolm on the u. S. Court of appeals for the d. C. Circuit and in fact the Public Service he worked under president reagan, domestic policy staff and assistant attorney general for office of Legal Counsel in Deputy Attorney general. Finally as a 77th attorney general under the first president bush. In the private sector he was a partner of sean pittman and later kirkland and after his a Services Attorney general for the first time he served as executive Vice President of first gte and then brazen. And he is one of two people in the history of the country to serve the country twice as attorney general. It is my honor to present the 82nd attorney general of the United States william barr. [applause] thank you very much. It is a real honor to be here tonight and join with all of you. I appreciate you all being here and its particularly on honor to join the distinguished lawyers in this room and thank you for the introduction but im the 85th attorney general. [laughter] in chinese has come in very handy because i find that when you read congressional enactment from right to left they make a lot more sense. [laughter] it is an honor to be here this evening and to deliver the 19th annual Barbara K Olson mario lecture. I have had the privilege of being friends with ted since we first met in the Reagan Administration and ted was head of the office of Legal Counsel and had the privilege of knowing barbara and had great affection for her and i miss her brilliance and ebullient and its a real privilege for me too participate in this lecture of a way of honoring barbara. I was trying to figure out what would be inappropriate speech to give here at the federal society and i was having difficulty i thought maybe the notre dame speech had done so well i was just going to do it again. [applause] but recognizing that this years annual convention is a regionalism, the theme, which is a fitting choice though i do say its somewhat unoriginal for the federalist side. I say that because we all know that the federal society has played an historic role in advancing the principles of a regionalism and while other organizations have contributed over the years, certainly the federal society has been in the vanguard. A watershed for the cause was a decision of the American People to staine send warm awake into e white house accompanied by his close adviser ed neese and the cadre of others who are firmly committed to an original o origt approach to the law. I was honored to work with ed and can in the white house in the Reagan White House and i was also honored to be there several weeks ago in the oval office when President Trump presented ed neese with the president ial of freedom. [applause] as President Trump noted, over the course of his career ed neese has been among the nations most eloquent champions for following the constitution as written. And im also proud to serve as attorney general for President Trump who is taking up the torch in his judicial appointments. That is true of his two outstanding appointments to the Supreme Court, the Supreme CourtJustice Neil Gorsuch in brett kavanaugh. [applause] and of the many superb appeals and District Court judges he has appointed in many of whom are here this week and of the many outstanding nominees to come in many of whom are also here this week. [laughter] i wanted to choose a topic for this afternoons lecture that had an originalist angle and will likely come as little surprise to this group that ive chosen to speak about the constitution approach to executive power, i deeply admire the american presidency as a political and Constitutional Institution and i believe its one of the great and remarkable innovations in our constitution and has been one of the most successful features of the constitution and 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 a steady encroachment on executive authority by the other branches of government. This process has substantially weakened the function of the presidency to the detriment of the nation. In this afternoon i would like to expand on these themes. First let me say what the framers had in mind in establishing an independent executive in article two of the constitution. The Grammar School class version of our revolution it was a rebellion against. Knee and in framing our constitution with the preoccupation, the main preoccupation of the founders was to keep the executive week. This is misguided. By the time of the glorious revolution of 1689 the power was effectively neutered and have begun its steady decline, parliamentary power was well on its way to supremacy and effectively in the driver seat. By the time of the American Revolution the patriots well understood that their prime antagonist was an overweening parliament. Indeed british think they came to conceive a parliament as a very seat of sovereignty. During the revolutionary era, american thinkers who initially considered inaugurating a republic reform of government tend to think of the executive component of essentially a supreme legislative branch. Often the executive, sometimes constituted as a multimember counsel was conceived as a creature dependent on subservient to the body. Housel function was carrying out the legislative will. Under the articles of confederation for example, there was no executive independent of the legislative power. Things changed by the Constitutional Convention of 1787. To my mind, the real miracle in philadelphia that summer was a creation of a strong executive, independent of and coequal with the other branches of government. The consensus for strong independent executive arose from the framers experience and the revolution and under the articles of confederation. They had seen that the war was almost lost in the bumbling enterprise because of the lack of strong executive leadership. And under the articles of confederation they had been mortified by the inability of the states to protect themselves against foreign impositions or to be taken seriously in the international arena. They had also seen after the revolution to many states had adopted constitutions with weak executives overly subordinate to the legislatures. If this had been the case, state governments have proven incompetent into radical. For these practical experiences, the framers had come to appreciate that th to be succesl a republican government required to capacity to act with energy, consistency and decisiveness. They had come to agree that those attributes could best be provided by making the executive power independent of the divided councils of the legislative branch investing the executive power in a solitary individual regularly elected for a limited term by the nation as a whole and as jefferson put it, for the prompt, clear and consistent action, so necessary in an executive, unity of person is essential. While there have been some differences among the framers as to the precise scope of executive power in particular areas there was general agreement about its nature. Just as a great separation of powers theorist such as polybius and montesquieu and locke, just as they had, the framers thought executive power as a distinct specie of governmental power. To be sure executive power includes the responsibility for carrying into effect, executing, the laws passed by the legislator. That is applying the general rule to particular situations but the framers understood that executive power meant more than this. It also entailed the power to handle essential sovereign functions such as the conduct of Foreign Relations and the prosecution of war. Which by the very nature cannot be directed by a preexisting legal regime but rather demand speed, secrecy, unity of purpose and prudent judgment to meet contingency. They agreed that due to the very nature of the activity involved in the kinds of decisionmaking that are required, the constitution generally Vested Authority over these fears in the executive. For example, jefferson, our first secretary of state describe the conduct of Foreign Relations is executive altogether. Subject only to the explicit exceptions defined in the constitution such as the senates power to ratify treaties. A related and third aspect of executive power is empowered to address circumstances that demand quick action to protect the wellbeing of the nation but in which the law is silent or inadequate. Such as dealing with natural disasters or plagues. This residual power to meet contingency is essentially the founder of power discussed by locke and his second treatise. And finally there are the executive powers necessary for internal management of the executive. These are the powers necessary for the president to superintend and control the executive function. Including the powers necessary to protect the independence of the executive branch and the confidentiality with internal liberation. Some of these powers are expressed in the constitution such as the power of appointment and others are implied. Complicit in the constitution. For example the removal power, one of the more amusing aspects of modern progressive polemic is the breathless attacks on the unitary executive theory. [laughter] [applause] they portray this as newfangled theory to justify executive power of sweeping unfettered scope. I think some of you may have seen a horrible movie vice about the Vice President cheney and theres a scene where the young cheney, he was young i think he may been 36 years chief of staff of the white house and he goes into meet the young school leah at the office of Legal Counsel and they talk about the new theory that will allow them to take over the world and is called the unitary executive theory. [laughter] and some of you may recall when i was up for confirmation, all the Democratic Senators saying how concerned they were about my adherence to the unitary executive theory. [laughter] in reality the idea of the unitary executive does not go so much to the breath of the president ial power, rather the idea is whatever the executive power may be, those powers must be exercised under the president s supervision. This is not new and not a theory. It is a description of what the framers did an article two. [applause] and they have to decide to establish a function independent of the legislature in the next question is, who will perform the function. The framers had two potential models, they could insinuate checks and balances into the executive branch by conferring power on multiple individuals such as the council and thats dividing the power within the executive. Or they could invest in the clipart in a solitary vigil. They quite explicitly and uniformly chose the latter model because they believe that investing executive authority and one person would and view the presidency with precisely the attributes necessary for energetic government and even jefferson who is usually seen as less of a hawk in hamilton on an executive power was insistent that executive power be placed in single hands and he cited the americans unitary executive as a single future that distinguished americas success from the failed republican experiment. The implications of the framers decisions are obvious. If congress attempts to vest the power and execute the law to someone beyond the control of the president it contravenes the framers clear intent to vest the power in a single person. The president. So much for the supposedly no serious new theory of the unitary executive. Well understand the framers expected that the three branches would be jostling and jousting with each other as each threatened to approach on the prerogatives of the others. They thought this was not only natural but salutary. And they provisioned each branch with the wherewithal to fight and defend itself in these interbranch struggles for power. So that we turn now to have the executive president lee faring in the bottles. I am concerned the deck has become stacked against the executive and since the mid60s there has been a steady grinding down of the executive branches authority that accelerated after watergate. More and more the president s ability to act in areas in which he has discretion has become smothered by the impertinence of the other branches. When these disputes arise, theres two aspects of contemporary thought, conventional wisdom that tend to operate to disadvantage of the executive. The first is, this notion of politics and a Free Republic is all about the peoples branch, the legislative branch and the Judicial Branch protecting liberty by imposing restrictions on the executive. The premise is the greatest danger of government becoming oppressive is from the executive and the prospect of executive success. So there is a tendency to see the legislative and Judicial Branches as the good guys protecting the people from a wouldbe autocrat. That is the media general presentation of separation of powers issue. This prejudice is wrongheaded and atavistic. It comes out of the english week view of politics in english constitutional experience where political evolution was precisely that. You started out with the king having all the cards, he holds all power including legislative and judicial and political evolution involves a process by which the legislative power gradually over hundreds of years reined in the king and extracted and established its own powers as well as the powers of the judiciary. Certainly a watershed in the evolution was a glorious revolution of 1689. But by 1787 we had the exact opposite model in the United States. The founders greatly admired how the british constitution had given rise to principles of balance government but they felt that the british constitution had achieved an imperfect form of this model. They saw themselves as framing a more perfect version of separation of powers and a balance constitution. And part of the more perfect construction was a new kind of executive. They created an office that already was the ideal a wig executive. It already had builtin the limitations that the doctrine had aspired to for centuries. It did not have the power to tax and spend, it was subject to habeas corpus. It was bound by due process and enforcing the law against members of the politics. It was selected for a limited term of office and elected by the nation as a whole. That is a remarkable democratic institution. The only figure selected by the nation as a whole and with the creation of the american presidency, the whigs obsessive focus on the dangers of narco rural lost relevance. This fundamental shift in view was reflected in the Convention Debates over the new frame of government. Their concerns were very different than those that weighed on the whigs of the 17th century, it was not that executive power was so much concern to them, it was the danger of the legislative branch at the time which they viewed as the most Dangerous Branch to liberty. As madison warned, the legislative department is extending the sphere of this activity and drawing all powers into its impetuous vortex. Indeed they view the presidency as a check on the legislative branch. The second contemporary way of thinking that i think operates against the executive is the notion that the constitution does not sharply allocate powers among the three branches. But rather the branches, especially the political branches share powers. The idea is because two branches both have a role to play in a particular area, we should see them as sharing power in the area and its not really such a big deal if one branch expands its role within the sphere. Whenever i see a Court Opinion using the word share i want to run in the other direction. It reminds me theres a kid and my grandchilds preschool who as soon as my grandchild is playing with a toy reaches over