This column by ACRU General Counsel Ken Klukowski was published October 30, 2017 by Breitbart.
WASHINGTON, DC — Attorney General Jeff Sessions unapologetically praised constitutional conservatism in a speech at the Heritage Foundation on Thursday, extolling the Constitution’s separation of government powers, singling out religious liberty for special focus, and sharply criticizing federal judges who refuse to abide by their limited role in the American Republic.
Sessions began by praising President Trump’s recent speech to the Heritage Foundation — perhaps the flagship think tank of the conservative movement — in which the president urged that all Americans “rededicate ourselves to the defense of our God-given rights.”
“We must above all vigorously defend the inalienable rights that are part of our heritage and especially religious liberty and freedom of speech,” Sessions declared. “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.”
“In every generation, there have been those who say that certain speech is not deserving of protection. Many of these people are well-intentioned,” the attorney general continued, quoting Justice Oliver Wendell Holmes, who 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.”
“Under President Trump’s strong leadership, this Department of Justice is doing its part to protect this right,” Sessions went on, noting that DOJ has already filed legal briefs in two campus free speech cases so far and suggesting more will follow.
“Incidentally, one of those cases arose when a college student was prevented from proclaiming his Christian faith,” Sessions noted. “This case is doubly important because the restrictions impact both speech and the free exercise of religion.”
Pivoting to religious liberty, Sessions observed, “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 Rev. Martin Luther King Jr. to march and to use the power of words to make this country better,” the attorney general added, noting that King said segregation must be abolished because it is “sinful.” Sessions agreed with King’s statement 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.”
Continuing on religious liberty, Sessions explained, “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.”
Sessions said this hostility to religious freedom was a significant impact on the 2016 election, as President Trump continues to keep his promise to protect faith in America.
“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,” the attorney general told the audience. “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,” Sessions declared. “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.”
Sessions catalogued several of DOJ’s accomplishments, including ending lawsuits over Obamacare’s contraceptive mandate and discontinuing unconstitutional insurance payments for which had never appropriated funds.
“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,” Sessions added, wading into one of the most controversial Supreme Court cases this year:
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.
“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,” said Sessions, pivoting to discuss immigration. “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,” insisted the attorney general, making a point that should apply equally to every area of law. “Once again, President Trump put an end to it.”
Speaking exclusively about immigration, he continued, “And we are no longer allowing state and local jurisdictions to nullify federal immigration law if they want to receive our law enforcement grants.” That issue is now being litigated in federal court.
Sessions ran through several other areas that DOJ is litigating, including defending voter identification laws, legislative redistricting plans, and racial preferences programs at both public and private universities. He mentioned that Asian students are typically disadvantaged in racial-preference programs, not given preferential treatment.
“But that brings me to a final point: how we preserve our rights,” said Sessions. “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,” he continued, then cited as an example a federal judge in Brooklyn presiding over a challenge to President Trump’s discontinuing DACA benefits that were never authorized by Congress.
“That is a straightforward question of law,” Sessions explained. “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,” the attorney general sharply criticized the judge’s actions. “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.
Denouncing recent examples of trial court judges (there are 600 federal district judges, scattered among 94 judicial districts) issuing nationwide injunctions to block the president’s programs, the attorney general declared, “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.”
“[The president] is nominating truly outstanding judges for our courts who understand these principles,” Sessions added, highlighting the issue of judicial nominations, which is one of President Trump’s most politically popular issues. “I am very proud of this judicial record and to serve in his Justice Department.”
The attorney general went on to list a number of legal victories that the Trump administration had won in court thus far, citing them as what is possible when cases are decided by judges committed to following the Constitution and federal law as they are written.
“The Department of Justice respects the separation of powers in all our work, and we follow the law as written,” he said in closing. “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,” concluded Sessions.