OLSON MEMORIAL LECTURE. I'M GENE MEYER AND THIS MEMORIAL LECTURE STARTED, AS MANY OF YOU KNOW SHOT,LY AFTER 9/11. TED OLSON'S INAUGURAL LECTURE REMINDED US OF WHAT IT MEANS TO BE AN AMERICAN. HOW OUR LEGAL TRADITION IS A CRITICAL PART OF OUR IDENTITY AS AMERICANS. BOTH TED, WHO IS HERE TODAY, AND BARBARA, UNDERSTOOD THIS CONNECTION. WE WANT THIS LECTURE TO REMIND LAWYERS OF IT SO THEY FOSTER LEGAL PRINCIPLES THAT ADVANCE INDIVIDUAL FREEDOM, PERSONAL ...

RESPONSIBILITY, AND THE RULE OF LAW. OTHER LECTURERS HAVE INCLUDED JUSTICE SCALEA, CHIEF JUSTICE ROBERTS, VICE PRESIDENT CHENEY, JUDGE STEN STARR, GINSBERG, JACOBS, THEN JUDGE, NOW JUSTICE GORSUCH, FORMER ATTORNEY GENERAL MICHAEL CASEY, PETER TEAL, JOHN ALISON AND TWO SENATORS. THAT BRINGS US TO TODAY'S LUCKTURE. IT'S MY HONOR TO INTRODUCE BARBARA OLSON. WHITE HOUSE COUNSEL DON McGANN. BEFORE THE COUNSEL, SERVED AS CHAIRMAN OF THE FCC AROUND MORE RECENTLY A PARTNER AT JONES DAY. ALL THAT PRIOR TO JOINING THE TRUMP CAMPAIGN AS THEIR COUNSEL. HE EARNED HIS B.A. FROM NOTRE DAME AND HIS J.D. FROM WIDNER. DON HAS AN ENTREPRENEURIAL SPIRIT THAT HE'S BROUGHT TO EVERYTHING HE DOES AND LIKE BARBARA, HE'S MADE HIS OWN WAY OFTEN RAISING AND APPROACHING QUESTIONS IN AN UNCONVENTIONAL WAY, AND ADVOCATING THINGS SIMPLY BECAUSE HE THOUGHT THEY WERE RIGHT. ONE OF HIS MAJOR INTERESTS HAS BEEN JUDGES. ANOTHER IS THE ADMINISTRATIVE STATE. ABOUT WHICH, AS THIS CONFERENCE SHOWS, AND AS WE HEARD LAST NIGHT, THERE IS INCREASING DISCUSSION AND DEBATE. AS IS TYPICAL WITH DON, LIKE BARBARA, TAKES THE LEAD IN SUCH CRITICAL DISCUSSES AND BATTLES. IT IS ALSO TYPICAL THAT HE DOES IT WITH ENERGY, ZEST AND GOOD HUMOR. IN HIS WORK ON BOTH JUDGES AND ADMINISTRATIVE LAW DON IS COMMITTED TO THE CONSTITUTION AND ITS STRUCTURE AND COMMITTED THROUGH HIS PUBLIC SERVICE TO ADVANCING THE FORM OF GOVERNMENT THAT, TO PUT IN HIS BOSS'S WORDS, MAKES AMERICA GREAT. I AM DELIGHTED TO WELCOME DON McGANN AS THE 2017 BARBARA OLSON LECTURER. [APPLAUSE] >> ...

THANK YOU VERY MUCH. >> I THINK I'M JUST GOING TO QUIT WHILE I'M AHEAD. THANK YOU. THE RECEPTION WILL BE ACROSS THE HALL. IT'S REALLY AN HONOR TO BE HERE, TO BE INVITED TO THE BARBARA OLSON LECTURE. I KNEW BARBARA, I BELIEVE I ACTUALLY MET HER AT THIS HOTEL DURING A FEDERAL SOCIETY CONVENTION LIKE THIS ONE MANY, MANY YEARS AGO. AND WHEN LEONARD CALL AND ASKED IF I COULD DO THIS LECTURE, I THINK I SAID, I THINK YOU DIALED THE WRONG NUMBER. BECAUSE THEN I LOOKED IT UP, AND GENE, FIRST THANKS FOR THE INTRODUCTION, BUT TWO, HE LISTED ALL THE FOLKS WHO HAVE GIVEN THIS LECTURE AND WHEN YOU HEAR NUMBERS LIKE ...

SALCALEA, ROBERTS AND GORSUCH, AND THEN ME, ONE OF THOSE NAMES IS DIFFERENT FROM THE REST. I'LL JUST GIVE A HINT. I DON'T HAVE ANY PROBLEM WITH TRUCK DRIVERS. I THINK THE MEDIA ARE WONDERING WHAT THAT WAS ABOUT. THE FEDERAL SOCIETY IS REALLY AN AMAZING ORGANIZATION. I HAVE BEEN PRIVILEGED TO BE A PART OF IT FOR MANY, MANY YEARS AND WATCH IT GROW. I REMEMBER THE FIRST TIME THAT I ATTENDED ONE OF THESE CONFERENCES. IT WAS 1995. I HAD RECENTLY MOVED TO WASHINGTON, D.C., AND I DIDN'T REALLY KNOW ANYONE AND VERY FEW PEOPLE WOULD TALK TO ME. NOW I KNOW A LOT OF PEOPLE AND VERY FEW PEOPLE STILL ACTUALLY WANT TO TALK TO ME. [LAUGHTER] >> I MET ANOTHER OF PEOPLE OVER THE YEARS. I REMEMBER MEETING SOMEONE ELSE WHO HAD JUST MOVED TO D.C. ...

, AND THE CONVERSATION WENT LIKE THIS. SO YOU JUST MOVED TO D.C. YES. WHAT WERE YOU DOING BEFORE? >> I WAS A LAW CLERK. OH, DID YOU CLERK FOR 0LITO, THIRD CIRCUIT, WHERE DID YOU GO TO SCHOOL, HARVARD. UNDERGRAD OR LAW. >> BOTH, I SAID, ...

OH, THIS WAS ALEX -- AND NOW HE'S SECRETARY OF LABOR. SO FOR THE YOUNG LAWYERS OUT THERE YOU NEVER KNOW WHO YOU'RE GOING TO MEET. KEEP IN TOUCH. [LAUGHTER] >> SOMEDAY THE PERSON YOU'RE TALKING TO MIGHT BE WHITE HOUSE COUNSEL AND THE PRESIDENT MAY BE LOOKING FOR A SECRETARY OF LABOR. ...

YOU JUST NEVER KNOW. AND [APPLAUSE] >>

I HAVEN'T EVEN GOTTEN TO THE FUN ANY PARTS YET. SO, THE OTHER THING I REMEMBER, AND THIS IS THE FIRST CONFERENCE, AGAIN, SORT OF YOU NEVER KNOW WHO YOU'RE GOING TO MEET AND I MANAGED TO STUMBLE INTO THE BANQUET DINNER, PREDECESSOR OF WHAT WE HAD LAST NIGHT AND I RECALL, IT WAS ACROSS THE HALL IN ONE OF THE BALLROOMS AND THERE WAS PLENTY OF ROOM IN BETWEEN THE TABLES TO NAVIGATE. IT WAS NOT AS LARGE AS IT IS NOW AND I WAS LOOKING AROUND AND I FINALLY HEARD SOMEONE SAY, THERE IS AN EMPTY CHAIR WITH US AND SOMEONE GRABBED ME BY THE COAT AND I SAT DOWN AND I LOOKED AND THIS PERSON SAID HI, I'M TIM -- THE GUY FROM THE REAGAN ADMINISTRATION. THIS WASN'T, YOU KNOW, TOO LONG AFTER THAT. HE SAID, YES, THIS IS GRAY. WE GO AROUND AND INTRODUCE. THE FEDERALIST SOCIETY I WILL ILLUMINATI. HE SAID, HIGH, I'M ED MEESE. YOU LOOK JUST LIKE ED MEESE. I WAS IN D.C. FOR MAYBE ONLY TWO WEEKS AND I CALLED MY MOM. SHE WAS AFRAID I WAS IN JAIL. BUT THEN SHE REALIZED, I WOULDN'T BE ABLE TO MAKE THE CALL. SO I TOLD HER ALL ABOUT IT. I THOUGHT THAT EVERY WEEKEND IN WASHINGTON, D.C. WAS GOING TO BE JUST LIKE THAT. [LAUGHTER] >> IT WAS NOT. NOT EVEN CLOSE. SO, YOU KNOW, BUT HERE WE ARE. THE PAST SEVERAL YEARS FOR ME HAS BEEN A VERY INTERESTING JOURNEY. ...

IT'S BEEN A PRIVILEGE TO BE PART OF A PRESIDENTIAL CAMPAIGN THAT WAS SUCCESSFUL AND TO HAVE THE HONOR OF BEING NAMED COUNSEL TO THE PRESIDENT OF THE UNITED STATES. IT ALL BEGAN IN IOWA, AS MOST THINGS DO IN PRESIDENTIAL CAMPAIGNS, AND THE MEMORY OF HAVE OF IOWA WAS STANDING IN MY HOTEL ROOM IN DES MOINES LOOKING OUT THE WINDOW AT THE ICONIC SKYLINE, AND IF YOU DO ENOUGH CAMPAIGNS, IT'S ICONIC. [LAUGHTER] >> AND I REMEMBER, I TRADED VOICE MESSAGES WITH SOMEONE FROM THE FEDERALIST SOCIETY WHO WILL REMAIN NAMELESS, SO I DON'T EMBARRASS JONATHAN BUNCH, AND WE FINALLY CONNECTED ON THE PHONE AND I HEARD THEY WERE ATTEMPTING TO FIGURE OUT HOW TO GET IN TOUCH WITH THE TRUMP CAMPAIGN. THEY HAD MANAGED TO GET IN TOUCH WITH THE OTHER CAMPAIGNS BUT THE TRUMP CAMPAIGN WAS KIND OF LEAN AND MEAN, AND, YOU KNOW, IT CAUGHT ON WITH THE VOTERS QUICKLY BUT DID NOT CATCH ON WITH THE POLITICAL ...

CLASS. FRANKLY, STILL HASN'T. [LAUGHTER] >> IT'S FUNNY NOW, BUT WERE YOU LAUGHING THEN? [LAUGHTER] >> I WAS.

SO, I HAVE SUBSTANCE COMING UP. >> JUST KEEP GOING. SO, I GET ON THE PHONE WITH THE UNNAMED FEDERALIST SOCIETY PERSON WITH THE INITIALS JB, AND HE SAID, HEY, YOU KNOW, I WANT TO TALK TO YOU. WE'RE TRYING TO GET IN TOUCH WITH THE TRUMP CAMPAIGN. ...

WE'RE REACHING OUT, WANT TO TALK ABOUT JUDICIAL SELECTION. OBVIOUSLY WE AREN'T GOING TO TAKE A POSITION. I SAID I UNDERSTAND THAT I DABBLE IN NONPROFIT TAX LAW. FROM TIME TO TIME. SIDE NOTE, LOIS WAS HEAD OF THE FCC ENFORCEMENT YEARS AGO, JUST SAYING. SO I SAID, OH, I'M GLAD YOU CALLED. WE WERE JUST TALKING ABOUT JUDICIAL SELECTION, AND THE VOICE ON THE OTHER END SAID, YOU ARE, YEAH, WE ACTUALLY HAVE SOMEBODY IN THE CAMPAIGN THAT'S GOING TO HELP US. OH, WHO, VERY EXCITED, WHO IS IT, FORMER CHIEF-OF-STAFF TO PRESIDENT BUSH, JOHNSON NUNNEN. HE HAS A LOT OF EXPERIENCE. SO THERE IS THIS -- [LAUGHTER] >> THERE IS THIS DEAFENING PAUSE ON THE OTHER END OF THE PHONE, AND I THINK IN DES MOINES, THE PHONES WENT DOWN. I HEAR ON THE OTHER SIDE THIS SORT OF THROATY KIND OF, WELL, IT'S GOOD YOU HAVE SOMEONE HELPING. I SAID, YES, IT'S GOING TO BE GREAT. HE HAS EXPERIENCE AND A PROVEN RECORD AND WE ASKED HIM TO COME UP WITH A COUPLE OF DIFFERENT LISTS. ...

THE FIRST LIST WE WANT MAINSTREAM FOLKS, NOT A BIG PAPER TRAIL, AND, YOU KNOW, THE KIND OF FOLKS THAT, YOU KNOW, WILL GET THROUGH THE SENATE AND, YOU KNOW, WILL MAKE US FEEL GOOD THAT WE PUT SOME PRAGMATIC FOLKS ON THE BENCH. SO THE VOICE SAID, ON THE OTHER END, I COULD HEAR THIS SORT OF GASP. AND SO I SAID WE'LL HAVE A SECOND LIST. THE SECOND LIST, WE ASKED HIM TO PUT TOGETHER SOME FOLKS, KIND OF TOO HOT FOR PRIMETIME, THE KIND THAT WOULD BE HOT IN THE SENATE, PROBABLY PEOPLE WHO HAVE WRITTEN A LOT, GET A SENSE OF THEIR VIEWS AND WE WANT TO MAKE SURE, YOU KNOW, THE KIND OF PEOPLE, YOU UNDERSTAND, THAT MAKE SOME PEOPLE NERVOUS. AND HE SAID, OH, OKAY. WELL, WHAT ARE YOU GOING TO DO WITH EACH LIST? I SAID THE FIRST LIST WE'LL THROW IN THE TRASH AND THE SECOND LIST, THAT'S WHO WE'RE GOING TO PUT BEFORE THE U.S. SENATE BECAUSE I KNOW McCONNELL WILL GET IT DONE. [APPLAUSE] >> ...

I'M JUST GOING TO FORGET MY CANNED REMARKS AND KEEP GOING. SO THERE WAS THIS PAUSE, AND I DID NOT KNOW JONATHAN BUNCH THEN LUKE I KNOW HIM NOW. AND, YOU KNOW, HE'S -- HE KIND OF STAMMERED AND WASN'T SURE. WAIT. WAIT. WHAT DID YOU JUST SAY? YOU HEARD ME. >> OH. >> LOOK, YOU HAVE NOTHING TO WORRY ABOUT, I'VE KNOWN LEONARD FOR YEARS IN THE FEDERALIST SOCIETY, YOU HAVE NOTHING TO WORRY ABOUT. SERIOUSLY, WE'RE ALREADY THINKING ABOUT IT AND I RATTLED OFF A COUPLE OF NAMES OF PEOPLE FOR DIFFERENT CIRCUITS. ...

OH, OKAY. >> I COULD JUST IMAGINE WHAT HE CALLED LEONARD AND REPORTED BACK. SO THAT BEGAN QUITE A JOURNEY THAT LED TO MR.

TRUMP, NOW PRESIDENT TRUMP, PUTTING OUT A LIST OF POTENTIAL SUPREME COURT FOLKS. NEVER REALLY HAD BEEN DONE BEFORE, IN TYPICAL FASHION, IT WAS NOT DONE IN THE PRIMARY SEASON TO GET PEOPLE TO THINK HE WAS MORE CONSERVATIVE THAN HE WAS. IT CAME OUT AFTER HE WAS THE PRESUMPTIVE NOMINEE, AT WHICH POINT, EVERY PERSON IN WASHINGTON SAID IT'S OVER. CAN'T DO THAT. GOT TO MOVE TO THE MIDDLE. IT WILL SCARE PEOPLE. SO IT REALLY KIND OF TELLS YOU WHERE WE ARE WITH THAT PIECE, AND, YOU KNOW, IT'S REALLY -- I'M VERY FORTUNATE TO SERVE A PRESIDENT WHO IS VERY COMMITTED TO WHAT WE'RE COMMITTED TO HERE, WHICH IS NOMINATING AND APPOINTING JUDGES THAT ARE COMMITTED ORIGINALISTS AND TEXTURALISTS. [APPLAUSE] >> ...

AND I THINK I CAN SAFELY SAY IT'S NOT JUST TALK. IF YOU LOOK AT WHO HAS BEEN NOMINATED, WHO HAS ALREADY GOTTEN THROUGH THE SENATE I THINK HE'S MADE GOOD ON WHAT HE'S SAID AND FOR ALL THE CHATTERING CLASS OF D.C. WHO THOUGHT IT WAS A HEAD FAKE OR JUST MADE UP OR IT WAS GOING TO BE SOMETHING DIFFERENT, I THINK THIS AMONG OTHER THINGS WE'VE PROVEN THEM TIME, PROVEN THEM WRONG TIME AND TIME AGAIN. SO LET ME TURN TO THE BORING PART, WHICH IS REGULATION AND RULE OF LAW IN THE ADMINISTRATIVE STATE, AND THEN I'LL END WITH MORE JOKES AT THE END. MY REMARKS TONIGHT REST ON TWO INDEPENDENT BUT RELATED IDEAS. THE GREATEST THREAT TO THE RULE OF LAW IN OUR MODERN SOCIETY IS THE EVER EXPANDING REGULATORY STATE. AND THE MOST EFFECTIVE BULWARK AGAINST THAT THREAT IS A STRONG JUDICIARY. IN SOME WAYS EXECUTIVE AGENCIES ARE AS OLD AS THE REPUBLIC. THE STATE DEPARTMENT, TREASURY DEPARTMENT AND THE DEPARTMENT OF WAR WERE CREATED SHORTLY AFTER THE FOUNDING. SO THE IDEA THAT THERE ARE AGENCIES WITHIN THE EXECUTIVE BRANCH IS SOMETHING THAT HAS BEEN AROUND A LONG, LONG, LONG TIME. IT WAS ALWAYS UNDERSTOOD THAT THE EXECUTIVE BRANCH WOULD HAVE THESE DEPARTMENTS, ARTICLE 2, SECTION 2 OF THE CONSTITUTION EXPRESSLY CONTEMPLATES THEM. IN TERMS OF EXECUTIVE DEPARTMENTS LED BY PRINCIPLE OFFICERS FOR WHOM THE PRESIDENT MAY REQUIRE AN OPINION IN WRITING ON RELEVANT MATTERS. BUT THE MODERN ADMINISTRATIVE STATE WAS NOT CONSTRUCTED TO THE 20th CENTURY ON THE MISGUIDED NOTION THAT EXPERTS RATHER THAN OUR ELECTED REPRESENTATIVES ARE BEST SUITED TO GOVERN THE NATION'S AFFAIRS. WOODROW WILSON WAS THE MOST NOTED AVATAR WHERE HE ARGUED FOR A SEPARATION OF POLITICS FROM THE WORK OF GOVERNING LEADING TO THE BIG DECISIONS SUPPOSEDLY ABOVE THE FRAY OF NONPARTISAN EXPERTS, TAKEN TO ITS LOGICAL CONCLUSION ONE WONDERS WHY WE SHOULD CONTINUE TO HAVE ELECTIONS AT ALL UNDER THAT WAY OF THINKING. SINCE THEN, THE ADMINISTRATIVE STATE HAS EXPANDED BEYOND ANYONE'S LOUDEST IMAGINATION, TO GIVE YOU JUST ONE EXAMPLE, IN 1960 THE CODE OF FEDERAL REGULATIONS, JUST OVER 20,000 PAGES, TOTAL IT'S OVER 200,000 PAGES. THE PERVASIVENESS OF FEDERAL REGULATION IS UNAVOIDABLE. THERE ARE SCORES OF AGENCIES AND ARMIES OF BUREAUCRATS WHO CLAIM TO BE SO-CALLED INDEPENDENT OF PRESIDENTIAL CONTROL. THEY CLAIM TO BE MONDAY PARTISAN BUT A REVIEW OF VOTER REGISTRATION AND THE LIKE SAYS OTHERWISE. THEY CALL PRESIDENTIAL APPOINTEES POLITICALS AND CALL THEMSELVES CAREERS, TOO OFTEN CLOISTERED IN THE CONFINES OF THEIR OWN REGULATORY STRUCTURE. IT'S VIRTUALLY IMPOSSIBLE FOR ANY INDIVIDUAL OR BUSINESS TO KNOW LET ALONE ENSURE COMPLIANCE WITH EACH OF THE REGULATORY COMMANDS THAT THESE AGENCIES AND BUREAUCRATS PRODUCE. WHERE DOES THE AUTHORITY FOR THIS VAST ADMINISTRATIVE STATE COME FROM? LET'S START WHERE WE SHOULD ALWAYS START. THE CONSTITUTION. THE CONSTITUTION VERY CLEARLY VESTS ALL GOVERNMENT POWER IN THREE BRANCHES. ARTICLE ONE AS WE KNOW THIS ONE, PROVIDES THAT ALL LEGISLATIVE POWER SHOULD BE VESTED IN A CONGRESS OF THE UNITED STATES. ARTICLE 2, THIS IS THE LECTURE PART, ARTICLE 2 STATES THAT THE EXECUTIVE POWER SHALL BE VESTED IN A PRESIDENT OF THE UNITED STATES. WE PARTICULARLY LIKE THAT ONE. ARTICLE 3 SAYS A JUDICIAL POWER OF THE UNITED STATES SHALL BE VESTED IN ONE SUPREME COURT AND IN SUCH FROM COURTS AS CONGRESS FROM TIME TO TIME SHOULD ORDAIN OR ESTABLISH. HOW DOES THE MODERN ADMINISTRATIVE SYSTEM WITHIN THIS SYSTEM? MANY IN THIS ROOM SAY IT DOES NOT BUT THE PROBLEM IS NOT MERELILY A FORMALISTIC CONSTITUTIONAL OBJECTION. THE GROWING UNACCOUNTABLE ADMINISTRATIVE STATE IS A DIRECT THREAT TO INDIVIDUAL LIBERTY. IT'S WELL-DOCUMENTED THAT THE PREVIOUS ADMINISTRATIONS HAVE ONE OF THE WORST RECORDS BEFORE THE SUPREME COURT IN AMERICAN HISTORY. SEVERAL LOSS LAWSUITS WERE BEFORE A UNANIMOUS COURT. IN MANY CASE AGENCIES WERE FAR EXCEEDING THEIR STATUTORY AND STUCKAL AUTHORITY AND IN DOING SO WERE DIRECTLY INTRUDING ON INDIVIDUAL RIGHTS. JUST LOOK AT SOME OF THE MOST IMPORTANT CASES THE SUPREME COURT DECIDED IN RECENT YEARS. -- VERSUS LOBBY LOBBY, LITTLE SISTERS OF THE POOR. THOSE ROSE OUT OF ADMINISTRATIVE ACTION. THEY WERE NOT IN THE STATUTE. INSTEAD THE DEPARTMENT OF HEALTH AND HUMAN SERVICES IMPOSED -- THROUGH REGULATION. REJECTED THE AGRICULTURE'S DEPARTMENT REQUIREMENT RAISING FARMERS SET ASIDE LARGE AMOUNTS OF THEIR CROPS FOR GOVERNMENT USE WITHOUT JUST COMPENSATION. AT ORAL ARGUMENT THE GOVERNOR'S ATTORNEY INSISTED THIS UNCOMPENSATED OF RAISINS WAS JUST STANDARD REGULATION, UNQUOTE. THE SUPREME COURT DISAGREED. NOW WE CAN ALL HAVE RAISINS. IN MICHIGAN VERSUS EPA, THE COURT INVALIDATED AN ENVIRONMENTAL REGULATION THAT IMPOSED NEARLY $10 BILLION IN COSTS PER YEAR FOR ONLY $6 MILLION OF BENEFITS. AND, THE EEOC SUED A CHURCH FOR ITEM NATURING A MINISTER THAT THE CHURCH'S VIEW HAD VIOLATED A TENANT OF THEIR FAITH THE SUPREME COURT UNANIMOUSLY DISAGREED. THESE ARE ONLY A FEW EXAMPLES BUT THEY DEMONSTRATE HOW SEVERE THE THREAT IS AND HOW THE COURTS ARE AN ESSENTIAL CHECK ON THE EXPANSION OF ADMINISTRATIVE POWER. NONE OF THESE IS NEWS TO PEOPLE IN THIS ROOM EXCEPT MAYBE THE MEDIA. HELLO. FROM ITS INCEPTION THERE IS A REASON WHY PRESIDENT TRUMP APPOINTED -- ASKED ME TO BE HIS LAWYER. FROM ITS INCEPTION, FEDERALIST SOCIETY HAS EMPHASIZED THE IMPORTANCE OF SEPARATION OF POWERS, OF INDIVIDUAL LIBERTY, AND THAT THE ROLE OF THE COURTS IS TO SAY WHAT THE LAW IS, NOT WHAT THE LAW SHOULD BE. FEDERAL SOCIETY MEMBERS SPAN A WIDE SPECTRUM OF POLITICAL PHILOSOPHIES AND POLICY PREFERENCES. WE SHARE A COMMITMENT TO THE RULE OF LAW. TO THE SAME ENDURING TRUTHS THAT INFUSED THE BRILLIANT DESIGNER OF OUR FOUNDING CHARTER THAT DUE PROCESS MATTERS, THAT THE STRUCTURE OF OUR GOVERNMENT MATTERS AND THE MEANING OF WORDS MEANS SOMETHING. AND THAT AN EROSION OF THOSE PRINCIPLES IS A DIRECT THREAT TO INDIVIDUAL LIBERTY. THAT'S WHY REGULATORY REFORM AND JUDICIAL SELECTION ARE SO DEEPLY CONNECTIONED. IN MY VIEW THEY ARE THE TWO LEGAL ISSUES THAT THIS ADMINISTRATION WILL ADDRESS. THE PRESIDENT IS MAKING FUNDAMENTAL CHANGES TO HOW THE REGULATORY STATE INTERACTS WITH PEOPLE AND HE'S SELECTING JUDGES THAT WILL ENFORCE THE LAW AS WRITTEN AND SEPARATE DIVISION OF POWERS. IT CAN BE SUMMED UP IN DUE PROCESS, FAIR IN THE AND INDIVIDUAL LIBERTY. THE TRUMP VISION OF THE JUDICIARY CAN BE SUMMED UP IN TWO WORDS. ORIGINALISM AND TEXTURALLISM. [APPLAUSE] >> ...

TONIGHT I HOPE TO UNPACK THESE IDEAS AND PROVIDE SOME INSIGHT IN HOW THE ADMINISTRATION IS WORKING TO ADVANCE THESE PRINCIPLES. LET'S BEGIN WITH THE ADMINISTRATIVE STATE. A FEW YEARS AGO, THE SUPREME COURT DECIDED A CASE CALLED SACKETT VERSUS EPA, MANY OF YOU, I'M SURE, ARE FAMILIAR WITH IT. YOU'RE FAMILIAR WITH THE CASE AND THE REGULATORY PROCESS THAT THE EPA INFLICTED ON THE SACKETT FAMILY. FOR THOSE NOT SURE, LET ME RECAP THE FACTS. THIS CASE, BEFORE I DO THAT CAPTURES A DISTURBING CLARITY OF THE MANY PROBLEMS OF THE MODERN ADMINISTRATIVE STATE. THEY PURCHASED LAND AND PLANNED TO BUILD A HOLE ON IT BUT AS THEY WERE PREPARING THE LAND FOR CONSTRUCTION THE EPA SENT THEM A COMPLIANCE ORDER CLAIMING THAT THE SACKETT CONSTRUCTION WAS PROHIBITED BECAUSE THEIR LAND WAS COVERED BY THE CLEAN WATER ACT. EVEN THOUGH IT WAS SEVERAL LOTS AWAY FROM ANY BODY OF WATER THEY ASSERTED THE LAND QUALIFIED AS NAVIGABLE WATERS AND THEY COULD NOT FILL THE LAND AS NECESSARY TO BUILD THE HOME. THEY ORDERED THE SACKETTS TO RESTORE THE LAND TO AN EPA APPROVED CONDITION OR FACE UP TO $75,000 PER DAY IN FINES. HERE'S THE KICKER. THE EPA DENIED THE SACKETT'S AN ADMINISTRATIVE HEARING AND THEN ARGUED THAT THEY LACKED ANY RIGHT TO CHALLENGE THE EPA'S ACTIONS IN COURT. IT SEEMED WOODROW WILSON'S DREAM OF THE SO-CALLED EXPERTS BEING FREE OF ANY JUDICIAL REVIEW HAD COME TRUE. THE CASE MADE ITS WAY TO THE SUPREME COURT, ON WHETHER THE SAKTS HAD ANY RIGHT TO CHALLENGE THE EPA'S ACTIONS IN COURT AND THE SUPREME COURT UNANIMOUSLY HELD THAT THEY D. TO A GROUP OF LAWYERS THIS SHOULD SEEM LIKE A STRAIGHTFORWARD PROPOSITION. A GOVERNMENT AGENCY SOUGHT TO ENJOIN PRIVATE INDIVIDUALS FROM USING THEIR PERSONAL PROPERTY AND IMPOSED A CRUSHING FINE. AS NOTED, IN A NATION THAT VALUES DUE PROCESS NOT TO MENTION PRIVATE PROPERTY SUCH TREATMENT IS UNTHINKABLE. BUT TO THE AGENCY THIS WAS JUST STANDARD REGULATION. THE EPA'S AUTHORITY COULD NOT BE QUESTIONED. SO THEY SAID. BUT THE ISSUE IS NOT ISOLATED TO THE EPA. IT AFFECTS ALL THE AGENCIES BIG AND SMALL. I HAD MY OWN ENCOUNTER DURING MY TENURE AT THE FEDERAL ELECTION COMMISSION. IT WAS CLEAR THAT DUE PROCESS WAS A FOREIGN CONCEPT AND I WAS QUITE VOCAL ABOUT THAT. BUSINESSES WERE BEING CUTTED IN SECRET, AND THE AGENCY REALLY LACKED PUBLICLY AVAILABLE PROCEDURES THAT GOVERN BOTH THE COMMISSION AND ITS STAFF. THE IDEA OF ENSURING THAT THOSE ACCUSED OF WRONGDOING HAD A MEANINGFUL OPPORTUNITY TO BE HEARD BY THE COMMISSION WAS AN ANATHEMA TO MANY. TO MAKE MATTERS WORSE SOME STAFFERS VIEWED THEM AS INDEPENDENT OF THE PRESIDENT. ACCORDING TO THESE FOLKS THEY HAD AUTHORITY TO MAKE DECISIONS DEVOID OF ANY STATUTORY LET ALONE CONSTITUTIONAL AUTHORITY. THINK ABOUT THAT. THE STATUS AS AN INDEPENDENT AGENCY, AS PART OF WHAT SOME CALL THE FOURTH BRANCH IS ALREADY UNDER ARTICLE 2 IN THE CONSTITUTION AND THE SUPREME COURT HAD HE WILL THAT THE ORIGINAL STRUCTURE WAS UNCONSTITUTIONAL IN IN A CASE. SOMEHOWINS ULATED AND WAS UNDER NO OBLIGATION, THE COMMISSION ITSELF WENT TOO FAR. IN THEIR MIND THEY WERE A FIFTH BRANCH OF THE GOVERNMENT INDEPENDENT FROM THE INDEPENDENT AGENCY AND ACCOUNTABLE TO NO ONE WHO HAD BEEN ELECTED BY THE CITIZENS THEY SOUGHT TO REGULATE. THIS IS NOT ISOLATED BUT SEEMS TO BE BUSINESS AS USUAL IN THEED MAY HAVE STATE. TAKE, FOR EXAMPLE, CASE OF FREE ENTERPRISE VERSUS PUBLIC ACCOUNTING OVERSIGHT BOARD. THERE THE SUPREME COURT HELD THAT THE PCA, ORIGINAL APPOINTMENT STRUCTURE, WAS UNCONSTITUTIONAL BECAUSE ITS MEMBERS COULD BE REMOVED ONLY FOR CAUSE BY COMMISSIONERS WHO THEMSELVES WERE REMOVABLE ONLY FOR CAUSE. THE JUDGE'S OPINION IN D.C. CIRCUIT SEIZED ON THIS DOUBLE FOR CAUSE REMOVAL PROTECTION AS A VIOLATION OF SEPARATION OF POWERS AND THE SUPREME COURT AGREED WITH HIM. REVERSING THE D.C. CIRCUIT. THESE ARE THE PROBLEMS, AND THE PROBLEMS THE CURRENT ADMINISTRATION IS FACING ACROSS THE GOVERNMENT. AGENCIES HAVE AN OBLIGATION TO AFFORD REGULATED PARTIES DUE PROCESS INCLUDING AN OPPORTUNITY TO BE HEARD. AGENCIES MUST BE ACCOUNTABLE TO THE ELECTED HEAD OF THE EXECUTIVE BRANCH AND THEY SHOULD VIEW CLAIMS WITH SKEPTICISM, NOT NONCHALANT. THE FIRST STEP IN SPROOEFRING INDIVIDUAL LIBERTY IS TO INSIST ON FAIR NOTICE. THE GOVERNMENT HAS AN OBLIGATION TO CLEARLY INFORM PARTIES OF THE RULES THAT WILL APPLY TO THEM. ANYONE WHO IS ENGAGED WITH THE REGULATORY STATE IN THE LAST SEVERAL DECADES KNOWS THAT AGENCIES HAVE OFTEN TAKEN PRECISELY THE OPPOSITE APPROACH. FAR TOO OFTEN AGENCIES ISSUE VAGUE REGULATIONS OR IN SOME CASES, NO REGULATIONS AT ALL. THEN THEY INTERPRET THOSE RESOLUTIONS THROUGH INTERPRETIVE RULES OR DEAR COLLEAGUE LETTERS. TO ADMINISTRATIVE LAW EXPERTS, THESE ARE KNOWN AS SUB REGULATORY ACTIONS. BUT WHATEVER YOU CALL THEM, THEY ARE ILLEGITIMATE. TYPICALLY THEY RECEIVE NO PUBLIC COMMENT AUMPBD THEY COME WITH NO ADVANCE WARNING BEFORE THE AGENCY SUDDENLY SPRINGS THEM ON UNKNOWS PARTIES. AGENCIES HAVE OFTEN MANAGED TO DUCK JUDICIAL REVIEW OF SUCH SUB REGULATORY ACTIONS CLAIMING THEY ARE NOT FINAL, BINDING RULES BUT THEY ARE INCONSISTENT WITH THE RULE OF LAW. MRAUZ [APPLAUSE] THERE IS NO WAY FOR REGULAR PEOPLE AND SMALL BUSINESSES TO KEEP UP WITH THE CONSTANT FLOOD OF REGULATORY AND SUB REGULATORY ACTION THAT IS POWER OUT OF THE STATE. THIS NONTOP SPIGOT IS A PROBLEM IN ITS OWN RIGHT. EVEN WHEN AGENCIES ANNOUNCE THE RULES THOSE RULES ARE BURIED IN HUNDREDS OF THOUSANDS OF PAGES IN THE FEDERAL REGISTER. MOREOVER THE SUB REGULATORY UNDERBELLY IS INDICATIVE OF THE MASSIVE NONDELEGATION PROBLEM LURK, IN THE MODERN ADMINISTRATIVE STATE. RATHER THAN EXERCISE THE LEGISLATIVE POWER, THIS CONSTITUTION INVESTS IN CHUAY'KONG ALMOST GIVES IT TO THE EXECUTIVE BRANCH. THEN THE JUDICIARY CONCEDES AWAY THE JUDICIAL POWER THAT THE CONSTITUTION VESTS IN IT BY DEFERRING TO AGENCY'S INTERPRETATIONS OF WHAT CONGRESS'S VAGUE STATUTES OF THE REGULATION STATE. THE RESULT IS ALL POLICY MAKING AUTHORITY IS SHIFTED TO THE ADMINISTRATIVE STATE AND ITS ACTIONS ARE LEFT LARGELY UNREVIEWED. IN THE 10th CIRCUIT, JUSTICE GORSUCH SAID IT MUCH MORE ELOQUENTLY THAN ANYONE COULD. HE WROTE, QUOTE, FACT IS CHEVRON AND BRAND EX-COMMIT EXECUTIVE BUREAUCRACIES TO SWALLOW HUGE AMOUNTS OF CORE JUDICIAL AND LEGISLATIVE POWER AND CONCENTRATE FEDERAL POWER THAT WAY THAT SEEMS MORE THAN A LITTLE DIFFICULT TO SQUARE WITH THE CONSTITUTION OF THE FRAMERS' DESIGN. MAYBE THE TIME HAS COME TO FACE THE BEVILACQUAHEME MOTH. [APPLAUSE] >> I KNEW, QUOTING GORSUCH WOULD MAKE ME FOUND IS. SO ON BEHALF OF HIM THANK YOU FOR APPLAUDING HIS WORDS. ON TOP OF THAT THE SUPREME COURT'S DECISION IN HUMPHREYS EXECUTIVE FOR WHICH HELD THAT CONGRESS CAN LIMIT THE PRESIDENT'S AUTHORITY TO REMOVE AGENCY HEADS AND MANY OF THE MOST SIGNIFICANT POLICY DECISIONS AND LEGAL RULES LIE ENTIRELY IN THE HANDS OF UNELECTED AND UNACCOUNTABLE AGENCIES. BUER KRATSZ WHOSE -- ...

CLAIMS OF BEING NONPARTISAN ARE MODERN REGULATORY SYSTEM MAKES A MOCKERY OF THE SYSTEM OF CHECKS AND BALANCES THAT OUR FOUNDERS PUT INTO THE CONSTITUTIONAL DESIGN. THE FRAMERS SEPARATED GOVERNMENT POWER, BOTH BETWEEN THE BRANCHES AND BETWEEN THE STATE AND FEDERAL GOVERNMENTS IN ORDER TO PRESERVE LIBERTY. WHEN WE TINKER WITH THE DESIGN WE TINKER WITH OUR FREEDOM. WHEN WE ABANDON THE DESIGN ALTOGETHER, WE INVITE THIS SORT OF REGULATORY DESPOTISM THAT THE SACKETTS EXPERIENCED AND WHICH GORSUCH SO ELOQUENTLY CRITICIZED. ALTHOUGH THE THREATS POSED BY THE MODERN ADMINISTRATIVE STATE ARE PERHAPS UNPRECEDENTED IN AMERICAN HISTORY THEY ARE ROOTED IN INTELLECTUAL STRUGGLE THAT'S EXISTED FOR A VERY LONG TIME. WHETHER ONE LOOKS AT THE VARIOUS COMPETING SCHOOLS OF THOUGHT IN GREEK PHILOSOPHY, THE DIFFERENCE BETWEEN THE AMERICAN AN FRENCH REVOLUTIONS, THE THEME IS CLEAR. MORE AN MORE YOU SEE BASICALLY TWO WAYS OF VIEWING HOW WE GOVERN OURSELVES. ONE IS WHERE FOLKS EMPLOY SO-CALLED EXPERTS TO MAKE THE BIG DECISIONS, AND OTHERS, IT'S MORE OF A CONSTITUTIONAL SYSTEM WHERE THE PEOPLE ACTUALLY GOVERN. OUR FOUNDERS KNEW THIS. THEY KNEW THE CORRUPT ABILITY OF MAN. DEEP SKEPTICISM OF CENTRALIZED POWER RESULTED IN A CONSTITUTIONAL SYSTEM CONSCIOUSLY DECIDED TO RESTRAIN, NOT ENLARGE FEDERAL GOVERNMENT'S AUTHORITY. MADISON EXPLAINED THAT THE SEPARATION OF POWERS SAFEGUARDS LIBERTY BY SETTING AMBITION AGAINST AMBITION. HE FAMOUSLY SAID NO GOVERNMENT WOULD BE NECESSARY. BUT BECAUSE OURS IS A GOVERNMENT ADMINISTERED BY MEN OVER MEN, THE GREAT DIFFICULTY LIES IN THIS. YOU MUST FIRST ENABLE THE GOVERNMENT TO CONTROL THE GOVERNED AND IN THE NEXT PLACE OBLIGE TO IT CONTROL ITSELF. THESE FOUNDING PRINCIPLES WERE INVERTED DURING THE EXPANSION OF THE ADMINISTRATIVE STATE DURING THE MIDDLE OF THE 20th CENTURY, AND THEY HAVE BEEN MOCKED AND ABANDONED BY THE MODERN STATE WHO FASHIONABLY CALL THEMSELVES THE PROGRESSIVE MOVEMENT. RATHER THAN PROTECT CITIZENS WE'VE BEEN TOLD THE PEOPLE CAN THRIVE ONLY THROUGH GOVERNMENT. WELL NAMED AGENCIES, SO-CALLED INDEPENDENT EXPERTS HAVE BECOME THE PANACEA FOR SOCIAL ILLS. THAT'S THE PRINCIPLE UNDERLYING THE SUPREME COURT'S DECISION WHICH HELD CONTRARY TO THE PLAIN TEXT OF ARTICLE 2, THEY MUST YIELD TO THE PROTECTION CONGRESS HAS GRANTED TO THE HEADS OF SO-CALLED INDEPENDENT AGENCIES. IT'S THE PRINCIPLE UNDERLYING THAT NOTION, THAT HAS COURTS DEFERRING TO AGENCIES INTERPRETATION OF THE STATUTES AND REGULATIONS THEY ADMINISTER. AND IT'S THE BASIS FOR THE SUPREME COURT'S TROUBLING DECISION IN FCC VERSE CHINNERY, WHICH HAS EMPOWERED AGENCIES TO ISSUE RETRO ACTIVE REGULATIONS. A DOCTRINE THAT'S EMPOWERED AGENCIES TO ANNOUNCE NEW RULES DURING ENFORCEMENT ACTIONS WITHOUT FAIR NOTICE OF THE PARTIES BEING REGULATED. JUSTICE JACKSON SAW THE PROBLEM INSTANTLY SPEAKING A DISSENT. HE SAID IT MAKES JUDICIAL REVIEW OF ADMINISTRATIVE ORDERS A HOPELESS FORMALITY FOR THE LITTLE GANT EVEN WERE IT GRANTED TO HIM BY CONGRESS. IT REDUCES THE JUDICIAL PROCESS IN SUCH CASES TO A MERE FAINT. HE SAID THAT THE THINKING WOULD BE -- WOULD PUT MOST ADMINISTRATIVE EXECUTIVE ORDERS -- ADMINISTRATIVE ORDERS OVER AND ABOVE THE LAW. COMPARED THAT TO ONE, WHERE THE COURT SAID, BEFORE TRANSACTIONS, OTHERWISE LEGAL CAN BE OUTLAWED OR DENIED, THE USUAL BUSINESS CONSEQUENCES, THEY MUST FALL UNDER THE BAN OF SOME STANDARDS OF CONGRESS PRESCRIBED BY AN AGENCY OF GOVERNMENT AUTHORIZED TO PRESCRIBE SUCH STANDARDS. I VOTE FOR CHANNER ONE, NOT TWO. [APPLAUSE] >> THESE FUNDAMENTAL SHIFTS IN OUR GOVERNMENT STRUCTURE ARE JUSTIFIED TO PROTECT THE HEALTH, SAFETY AND WELFARE OF THE PEOPLE. WE ALL WANT TO BE HEALTHY HAPPY AND SAFE BUT I SUBMIT WE CAN BE THOUGH THINGS WITHOUT ABANDONING THE FOUNDING PRINCIPLES WHICH MAKE US FREE SO WHAT CAN BE DONE TO CHANGE THE ROEGT TORE CULTURE? FOR STARTERS, BURDENSOME RULES CAN BE ELIMINATED AND REGULATORY COSTS CAN BE REDUCED. ...

ONE OF THE PRESIDENT'S FIRST EXECUTIVE ORDERS WAS ENFORCING THE REGULATORY FORM AGENDA. SECTION ONE OF THE ORDER VERY PLAINLY DECLARES IT IS THE POLICY OF THE UNITED STATES TO ALLEVIATE UNNECESSARY REGULATORY BURDENS PLACED ON THE AMERICAN PEOPLE. THE ORDER GOES ON TO REQUIRE EACH AGENCY TO DESIGNATE A REGULATORY REFORM OFFICER, SOME CALM THEM ROO'S BECAUSE IN WASHINGTON, D.C. WE ALWAYS NEED TO SPEAK IN ACRONYMS, THESE FOLKS ARE CHARGED WITH CARRYING OUT THE PRESIDENT'S REGULATORY INITIATIVES SO THERE IS A LINE OF ACCOUNTABILITY WEAN THE AGENCIES AND THE WHITE HOUSE CONSIST TONIGHT WITH ARTICLE 2 DECLARATION THAT THE EXECUTIVE POWER SHALL BE VESTED IN THE PRESIDENT. ONE OF THE PRESIDENTS OTHER EARLY EXECUTIVE ORDERS WAS ENTITLED REDUCING REGULATION AND CONTROLLING REGULATORY COSTS. IT IS TWO CRITICAL ELEMENTS. FIRST, FOR EVERY SIGNIFICANT REGULATION IT MUST IDENTIFY TWO EXISTING REGULATIONS FOR ELIMINATION. NOT ONLY DOES THIS DISCOURAGE NEW REGULATION, BUT IT FORCES AGENCIES TO CLEAN OUT THE REGULATORY SEDIMENT THAT'S BUILT UP OVER DECADES. ACT SIS MUST CONTROL THE REGULATORY COST THAT RULES IMPOSE ON THE COUNTRY BY CONDUCTING ECONOMIC ANALYSIS OF THEIR ACTIONS AN OFFSETTING ANY NEW COSTS WITH AT LEAST AS MUCH COST SAVING DEREGULATORY ACTIONS. THE GOAL IS NOT TO MAINTAIN THE STATUS QUO BUT TO DRIVE DOWN THE COSTS IMPOSED BY PREVIOUS ADMINISTRATION'S EXCESSES. WHAT ABOUT THE JUDICIARY. THESE EFFORTS TO REFORM THE REGULATORY STATE BEGIN WITH CONGRESS AND THE EXECUTIVE BRANCH BUT THEY ULTIMATELY DEPEND ON COURTS THAT ARE WILLING TO ENFORCE THE LAWS ENACTED BY CONGRESS AND THE STRUCTURAL LIMITS IMPOSED BY OUR CONSTITUTION. THIS ADMINISTRATION'S MANDATE IS CRYSTAL CLEAR. CHOOSE JUSTICES IN THE MOLD OF SCALEA, AND NOW GORSUCH. [APPLAUSE] >> JUSTICE SCALEA'S IMPACT CANNOT BE OVERSTATED. ...

HE REMINDED US THE LAW CONSISTS OF THE PEOPLE, THOSE WORDS MUST BE INTERPRETED AS THEY WOULD HAVE BEEN UNDERSTOOD BY THE PUBLIC AT THE TIME OF THEIR ENACTMENT. THERE CAN BE NO SECRET MEETINGS, NO HIDDEN AGENDAS HARBORED IN THE MINDS OF THE LAWMAKER. JUSTICE THOMPSON'S OPINIONS ARE THE DRIVING INTELLECTUAL FORCE BEHIND SO MANY OF TRUMP'S LEGAL AND REGULATORY PRINCIPLES. IN 2015, JUSTICE THOMAS ISSUED AN IMPRESSIVE SET OF DISSENTS SETTING FORTH HIS VIEW OF THE MODERN ADMINISTRATIVE STATE. IT SHOULD BE REQUIRED READING FOR ALL LAW STUDENTS. HIS CONCURRING OPINIONS IN MICHIGAN VERSUS EPA, ADVANCED ORIGINAL CRITIQUES -- IT'S INCONSISTENT WITH THE SEPARATION OF POWERS. EVEN JUSTICE STEVENS, AUTHOR OF THE SEVEN RON DECISION, SUBSEQUENTLY HAD CRITIQUED IT, SO THIS IS NOT AN ISSUE THAT'S PARTICULARLY ALIGNED WITH ONE PARTY OR THE OTHER. OR ONE SCHOOL OF THOUGHT OR THE OTHER. JUSTICE THOMAS'S CONCURRENCE IN THE AMTRAK CASE CALLED FOR THE NONDELEGATION DOCTRINE TO BE MEANINGFUL ENFORCED. THE JUDICIAL ACQUIESCENCE OF CONGRESS'S UNCONSTITUTIONAL TRANSFER OF LEGISLATIVE AUTHORITY TO THE ADMINISTRATIVE STATE. AND INDUSTRIES REJECTED THE NOTION THAT DECISIONS ISSUED BY ADMINISTRATIVE LAW TRIBUNALS COULD HAVE AN EFFECT ON LAWSUITS FILED IN FEDERAL COURT K. EVEN IN THIS ARREST CONTAIN AREA, JUSTICE THOMAS'S VISION WAS CLEAR. THE CONSTITUTION INVESTORS THE JUDICIAL POWER IN THE JUDICIARY, NOT EXECUTIVE BRANCH AGENCIES. REGARDING BOTH JUSTICE SCALEA AND THOMAS, THEY ARE THE VERY BEDROCK OF DUE PROCESS, FAIR NOTICE AND THE RULE OF LAW AND THOMAS'S OPINION DEMONSTRATES THOSE PRINCIPLES ARE MISSING IN OUR CURRENT ADMINISTRATIVE STATE. IN MY VIEW THE TWO ISSUES ARE ONE AND THE SAME. JUST AS REGULATE TORE AGENCIES SHOULD CON TRAIN THEIR ACTIONS, JUDGES MUST ENFORCE THOSE STATUTORY LIMITS. JUST AS SERGEANT SIS MUST PROVIDE DUE PROCESS TO PARTIES LIKE THE SACKETTS, JUDGES MUST FAITHFULLY ENFORCE THE CONSTITUTION'S STRUCTURAL PROTECTIONS WHICH EXIST TO PRESERVE INDIVIDUAL LIBERTY AND PERSONAL PROPERTY RIGHTS. AND JUSTICE AGENCIES OWE THE PUBLIC FAIR NOTICE OF THE RULES, COURTS MUST INTERPRET STATUTES AND THE CONSTITUTION AS THE PUBLIC WOULD UNDERSTAND THEM ACCORDING TO THE PLAIN MEANING OF THE TEXT. DUE PROCESS, FAIR NOTICE, ORIGINAL NATIONALISM AND TEXTURALLISM. THAT'S WHAT THIS IS ALL ABOUT. ORIGINALISM AND TEXTURALLISM. >> JUSTICE SCALEA'S TRAGIC DEATH PUT THESE ISSUES FRONT AND CENTER IN THE 2016 ELECTION. IN MY LIFE TOMB I CAN'T REMEMBER A PRESIDENTIAL ELECTION THAT TURNED SO CRITICALLY ON THE ROLE OF JUDGES. THE PRESIDENT KNEW THIS WHICH IS WHY HE ISSUED HIS LIST OF CANDIDATES FOR THE SUPREME COURT. HE WANTED THE AMERICAN PEOPLE TO KNOW EXACTLY THE TYPE OF JUSTICE HE WOULD SELECT. YOU MAY HAVE MISSED IT BUT IT CAME OUT RECENTLY THE PRESIDENT ANNOUNCED THAT HE'S REFRESHING HIS LIST OF POTENTIAL SUPREME COURT NOMINEES, SO IT'S PUBLIC, AND IF I COULD JUST BEG FOR YOUR INDULGENCE, WE ADDED FIVE NAMES TO THE LIST. AMY -- ...

BARRETT, SHE WAS RECENTLY CONFIRMED. [APPLAUSE] >> TO THE SEVENTH CIRCUIT. AND THE -- DOGMA MOVES LOUDLY IN HER. [APPLAUSE]

TO THE FOLKS OVER THERE, IN THE CONFIRMATION HEARING, SENATOR -- THE RANKING MEMBER SENATOR FEINSTEIN ACTUALLY COMMENTED ABOUT NOW JUDGE BARRETT SAYING -- [INAUDIBLE] >> JUDGE DOGMA IS ON THE LIST. [LAUGHTER] >> GRANT, WHO IS A SUPREME COURT JUSTICE IN ...

GEORGIA. [APPLAUSE] >> HE'S ON THE

LIST. CAVANAUGH -- [APPLAUSE] >> HE'S WINNING ON THE APPLAUSE METER. >> KEVIN NEWSOME,

RECENTLY CONFIRMED TO THE ELEVENTH CIRCUIT.

AND PATRICK -- [CHEERS] >> I THINK I'M JUST GOING TO THROW IN MY NOTES AND GO BACK TO MY OPENING BUT I'M ALMOST DONE WITH THE BORING PART. SO WHAT DO THE JUDGES ON THE LIST HAVE IN COMMON? THEY HAVE A DEMONSTRATED COMMITMENT TO ORIGINAL NATIONALISM AND TEXTURALLISM. THEY ALL HAVE PAPER TRAILS, SITTING JUDGES, THERE IS NOTHING UNKNOWN ABOUT THEM. WHAT YOU SEE IS WHAT YOU GET. IT'S NOT ENOUGH TO SAY THE RIGHT THINGS IN PUBLIC SPEECHES. JUDGES MUST APPLY THOSE PRINCIPLES IN CONCRETE CASES. GOOD JUDGES FOLLOW THE LAW, EVEN WHEN THEIR DECISIONS ...

ARE UNPOPULAR. MRAUZ [APPLAUSE] >> JUDICIAL COURAGE, IT'S AS IMPORTANT AS JUDICIAL INDEPENDENCE. [APPLAUSE] >>

THE PRESIDENT IS LOOKING FOR SAME TRAITS IN LOWER COURT JUDGES, ESPECIALLY ON APPEALS. HE WANTS SMART JUDGES THAT WILL APPLY THE LAW AS WRITTEN. THE INTERVIEW PROCESS IS LIKE THE SCALEA CLERKSHIP INTERVIEW EXCEPT WITH FOLKS IN THE WHITE HOUSE COUNSEL'S OFFICE. WE NEVER ASK THEM QUESTIONS ABOUT SUBSTANTIVE ISSUES BUT THEY ARE PUSHED AND PRODDED FROM EVERY ANGLE TO GET A SENSE AS TO WHAT METHOD THEY WOULD EMPLOY AS A JUDGE AND WHETHER THEY POSSESS THE FORTITUDE TO ENFORCE THE RULE OF LAW WITHOUT FEAR OF PUBLIC PRESSURE. OF COURSE, THE PRESIDENT'S POWER TO DOMINATE IS ONLY HALF THE BATTLE. SO WE'VE BEEN ACTIVELY ENGAGING WITH THE SENATE SINCE DAY ONE. I'VE SPOKEN TO OR REQUESTED TO SPEAK TO EVERY SINGLE SITTING SENATOR. NOT ALL WANT TO SPEAK TO ME. IN MANY CASES, MORE THAN ONCE, ABOUT JUDICIAL APPOINTMENTS IN THEIR STATES. ONE THING THAT'S MISSED FROM TIME TO TIME BY FOLKS WHO JUST READ THE TEXT OF THE CONSTITUTION IS THAT THE PRESIDENT GETS TO MAKE NOMINATIONS. ...

THEY FORGET THE PART ABOUT THE CONSENT CLAUSE, SENATE OVER MANY, MANY DECADES HAS DEVELOPED VARIOUS CUSTOMS THAT EMPOWER HOME STATE SENATORS TO HAVE A BIG SAY PARTICULARLY IN DISTRICT COURTS. FOR THOSE WONDERING REQUEST WE JUST DON'T NOMINATE YOUTH -- WE TAKE VERY SERIOUSLY THE OBLIGATION TO CONSULT WITH THE SENATE, AND WE PAINSTAKINGLY ENSURE THAT EVERY SENATOR HAS AN OPPORTUNITY TO PROVIDE INPUT ON JUDICIAL NOMINEES. THE FIRST THING I TELL EACH SENATOR, IS WE'RE HAPPY TO INTERVIEW THEM AND STRONGLY CONSIDER ANYONE THEY RECOMMEND. SOME NEVER TAKE US UP ON THIS OFFER AND MANY TELL A DIFFERENT STORY TO THE PRESS. BUT WE'RE MOVING QUICKLY TO FILL ALL EXISTING JUDICIAL VAGUE CAN SIS. [APPLAUSE] -- VACANCIES. >> CHAIRMAN GRASSLEY AND HIS TEEM HAVE DONE AN OUTSTANDING JOB MOVING THE PRESIDENT'S NOMINEES TO THE ...

SENATE JUDICIARY COMMITTEE. [APPLAUSE] >> CANDIDLY, CHAIRMAN GRASSLEY DOES NOT GET ENOUGH CREDIT FOR HIS WORK ON THIS. BUT THE MAJORITY LEADER IS REALLY THE ONE THAT'S CREATED THIS OPPORTUNITY. A NUMBER OF VACANCIES THAT WERE ON THE TABLE, WHEN THE PRESIDENT WAS SWORN IN, WAS UNPRECEDENTED. AND THE COURAGE THAT MITCH MCCONNELL SHOWED TO MAKE THAT HAPPEN WAS TREMENDOUS AND WE ALL OWE ...

HIM A DEBT OF GRATITUDE. NOT TO BE OUTDONE HE'S MADE THIS HIS NUMBER ONE PRIORITY AND HE'S DELIVERING THE NUMBER OF NOMINEES THAT ARE BEING CONFIRMED IS TREMENDOUS. HE'S WILLING TO BURN THE FLOOR TIMES, SPEAK IN THE SENATE VERY EN -- VERNACULAR. THEY WANT FULL DEBATE, EVEN THOSE PASSING 98-0. HOME STATE SENATORS ARE IN FAVOR OF THE NOMINEE AND THE LIKE. OUR OPPONENTS OF JUDICIAL NOMINEES FREQUENTLY CLAIM THE PRESIDENT HAS OUTSOURCED HIS SELECTION OF JUDGES, THAT IS COMPLETELY FALSE. I HAVE BEEN A MEMBER OF THE FEDERALIST SOCIETY SINCE LAW SCHOOL. STILL AM. SO, FRANKLY, I SEEMS LIKE IT'S BEEN INSOURCED. [APPLAUSE] >> ...

BUT SEEKING ADVICE FROM LEONARD AND MANY MEMBERS OF THE FEDERALIST SOCIETY, NOT OUTSOURCING THE JUDICIAL SELECTION PROCESS, FACT IS WE ALL SHARE THE SAME VISION OF THE JUDICIAL ROLE AND WE WELCOME INPUT FROM MANY SOURCES. MANY OF US IN THIS ROOM BECAME LAWYERS IN THE POST BJORK ERA. I DID. WE UNDERSTAND THE IMPORTANCE OF JUDICIAL SELECTION AND WE'VE SEEN FIRST HAND THE LENGTHS TO WHICH OTHERS WILL GO TO TARNISH THE REPUTATION OF BE MEN AND WOMEN. I'VE ALREADY MENTIONED EARLIER THIS YEAR THE SITUATION THAT CONDITION FRONTED NOW JUDGE BARRETT, PROMINENT DEMOCRAT SUGGEST THAT SHE COULDN'T BE TRUSTED BECAUSE SHE'S A PRACTICING CATHOLIC. THANKFULLY SHE'S NOW A JUDGE ON THE SECOND CIRCUIT. MRAUZ [APPLAUSE] >> GREG'S HEARING HAD THE TONE OF A SPANISH INQUISITION. ...

HE'S BEEN VOTED OUT OF THE COMMITTEE AND I'M CONFIDENT HE'LL SOON BE CONFIRMED TO THE D.C. CIRCUIT. [APPLAUSE] >> I HAVE TO CLAP FOR THAT ONE. >> I WANT TO THANK GREG FOR HIS SERVICE. HE'S BEEN INVALUABLE TO MY WORK IN THE WHITE HOUSE, AND, IT'S REALLY AN HONOR TO HAVE BEEN ABLE TO WORK WITH HIM AND BE A PART OF SEEING HIM, SENATE WILLING, GO TO THE NEXT LEVEL. [APPLAUSE] >> ...

SPEAKING OF OUTSOURCING, THERE IS A DIFFERENT SORT OF OUTSOURCING THAT'S VERY REAL AND SHOULD BE TROUBLING TO ALL OF US.

DUR OUR EFFORTS TO CONSULT WITH SENATORS ON POTENTIAL NOMINEES, THEY ARE OFTEN TOLD THAT THE SENATORS HAVE SO-CALLED COMMISSIONS BACK IN THEIR HOME STATE, THAT RECOMMEND JUDICIAL CANDIDATES TO THEM. AND THESE SENATORS SOMETIMES INSIST THAT THEY CANNOT SUPPORT ANYONE ON THEIR COMMISSION -- SORRY, CAN'T SUPPORT ANYONE THEIR COMMISSIONS DO NOT INTERVIEW AND ULTIMATELY RECOMMEND BUT I HAVE NEVER HEARD THE JUDICIAL COMMISSION'S CLAUSE IN THE CONSTITUTION. [APPLAUSE] >> MY CONSTITUTION SAYS THE PRESIDENT APPOINTS JUDGES WITH THE ADVICE AND CONSENT OF THE SENATE. ...

NOT A COMMISSION COMPOSED OF PLAINTIFFS, LAWYERS AND OTHERS WHO HAVE BUSINESS BEFORE THE VERY PEOPLE THAT THEY WILL HAVE HEARINGS IN FRONT OF. >> THE PROBLEMS WITH THIS PRACTICE ARE STRIKINGLY SIMILAR TO THE PROBLEMS WE FACE WITH THE ADMINISTRATIVE STATE. NO ONE ELECTED THE MEMBERS OF THESE COMMISSIONS. THEY HAVE NO REAL ACCOUNTABILITY TO CONGRESS OR TO THE PRESIDENT. YET SOME SENATORS WANT TO DELEGATE TO THEM THE POWER TO SELECT OR REJECT CANDIDATES FOR LIFETIME APPOINTMENTS TO THE FEDERAL BENCH. AND WHO ARE THE TYPICAL MEMBERS OF THESE COMMISSIONS? THE VERY LAWYERS WHO WILL BE PRACTICING BEFORE THE JUDGES THEY HAVE BEEN TASKED WITH SELECTING. THAT'S THE OUTSOURCING PROBLEM AND IT'S VERY ...

REAL. THEN THERE IS AMERICAN BAR ASSOCIATION. [GRUMBLINGS] >> I TOLD YOU I WAS GOING TO COME BACK TO THE GOOD STUFF. THEY HAVE NO ROLE WHATSOEVER IN THE PRESIDENT TRUMP -- [APPLAUSE] >> ...

ENOUGH SAID. [LAUGHTER] DESPITE THESE OBSTACLES WE'RE VERY PLEASED WITH THE QUALITY AND PACE OF OUR NOMINATIONS, WHEN THE PRESIDENT TOOK OFFICE THERE WERE OVER A HUNDRED FEDERAL JUDICIAL VAGUE CAN SIS INCLUDING THE SUPREME COURT IN. 10 MONTHS THE PRESIDENT HAD NOMINATED OVER 70 JUDGES. 14 HAVE BEEN CONFIRMED, NEARLY 50 ARE CURRENTLY PENDING IN THE SENATE. DOZENS MORE ARE IN THE PROCESS AND WILL BE NOMINATED SHORTLY, EARLY NEXT YEAR WE EXPECT A SIGNIFICANT NUMBER OF ADDITIONAL NOMINATIONS. WE KNOW HOW IMPORTANT THESE APPOINTMENTS ARE TO YOU AND HOW IMPORTANT THEY ARE TO THE RULE OF LAW. WE THANK YOU FOR YOUR SUPPORT IN THIS EFFORT. IN CLOSING, THIS CONVENTION HAS RIGHTLY BEEN A CELEBRATION OF THE FEDERALIST SOCIETY SUCCESS. NOT ONLY DID WE CELEBRATE THE APPOINTMENT OF THE COMMIT ASKED ORIGINALISTS TO THE SUPREME COURT, BUT IN THE TRADITION OF THE FEDERAL SOCIETY, WE'VE DEBATED THE MOST IMPORTANT LEGAL QUESTIONS FACING OUR NATION. HOW DO WE RESTORE THE RULE OF LAW, SEPARATION OF POWERS AND INDIVIDUAL LIBERTY IN THE FACE OF THE ADMINISTRATIVE BEHEMOTH? I WANT TO THANK THE FEDERALIST SOCIETY FOR THE TOPIC THIS YEAR. THE IDEA OF A RIGOROUS DEBATE OVER THE ROLE OF ADMINISTRATIVE STATE COULD NOT BE MORE TIMELY. IT'S BEEN BENEFICIAL TO US, IN A PERSONAL MOMENT, I FEEL THAT MANY OF MY HAIR BRAIN IDEAS ON ADMINISTRATIVE LAW ARE BEING DEBATED THIS WEEK BY VERY SERIOUS PEOPLE. IT'S AN HONOR TO BE A PART OF THIS, AND IT'S AN HONOR TO HAVE BEN A MEMBER OF THE FEDERAL SOCIETY FOR MANY, MANY YEARS. THANK YOU FOR THE OPPORTUNITY TO SPEAK TONIGHT. AND THANK YOU TO EVERYONE AT THE FEDERALIST SOCIETY FOR MAKING SO MUCH OF THIS POSSIBLE. THANK YOU. [APPLAUSE] >> ...

THANK YOU SO MUCH. I SUSPECT AMONG OTHER THINGS BARBARA WOULD BE VERY PROUD OF THAT AND I SEE TED NODDING. THANK YOU, THANK YOU FOR YOUR SERVICE. THAT CONCLUDES THE LECTURE. WE HAVE THE RECEPTION. IT'S ACROSS THE HALL, IS THAT RIGHT? THE RECEPTION FOR THOSE WHO HAVE SIGNED UP FOR THAT IS ACROSS THE HALL. APPRECIATE Y'ALL COMING AND THANK YOU. [APPLAUSE] [CAPTIONS COPYRIGHT NATIONAL CABLE SATELLITE CORP 2017] [CAPTIONING PERFORMED BY THE NATIONAL CAPTIONING INSTITUTE, WHICH IS RESPONSIBLE FOR ITS CAPTION CONTENT AND ACCURACY. VISIT NCICAP.ORG] BEEN VOICES] [INDISTINGUISHABLE ...