The Federalist Society

DeSantis to Federalists: ‘My swamp is warmer than your swamp!’

With two looming Florida Supreme Court appointments on the horizon, Gov. Ron DeSantis pontificated about judicial overreach, congressional abdication of power, and “originalism” during a speech to The Federalist Society’s National Lawyers Convention last week.

DeSantis pointed out that, in what will be a little more than a year on the job, he will have appointed five justices to the Florida Supreme Court, comparing it to the record of predecessors Jeb Bush and Rick Scott, who together tapped just three justices in their combined 16 years in office.

“Sometimes these things just happen. I think it’s neat,” the Harvard Law School alum told the crowd at the Mayflower Hotel in Washington, D.C. on Thursday.

The governor’s speech begins around 15:45 in the video, or you can jump to the transcription below

President Donald Trump nominated Florida justices Robert Luck and Barbara Lagoa to the 11th U.S. District Court of Appeals, and the Senate is set to confirm Luck later today. Lagoa’s confirmation is expected to come shortly.

DeSantis, who served briefly in Congress before launching his gubernatorial bid last year, began his remarks, as all well-versed speakers do, with a few cracks.

“I am a recovering congressman so people ask me if I’m happy to be out of D.C.,” he said. “Of course I’m happy to be out of D.C. and my swamp is warmer right now than your swamp is. It’s about 75 degrees in Palm Beach.”

The governor, who noted that he had help from the Federalists when making his Supreme Court selections, focused his speech on originalism, a topic that left DeSantis at ease as he rattled off his concerns about the failures of all three branches to properly implement the founding fathers’ intentions.

Originalism and textualism — the concept of applying the Constitution based on the intent of the writers of the document at the time they wrote it — “is the right way to do it,” DeSantis said, referring to court appointments.

“The reason why I think that’s the right way to do it is because you have to have some objective measure to go by. You can’t just be flying off the seat of your pants, philosophizing and imposing whatever idiosyncratic views you have on society, under the guise of constitutional interpretation,” he said. “So originalism provides a mechanism to cabin judicial discretion, which I think is very, very important.”

In his 20-minute speech, the governor demonstrated his Yale and Harvard wonkiness while waxing about Hamilton, Madison and the Federalist papers.

DeSantis said one of his biggest frustrations in Washington was Congress’ reluctance to exercise its power.

“I think the founders were pretty clear about how the constitutional system was arranged and would operate.

You had three separate branches. One branch was not necessarily subordinate to the other, so when they say they were equal, in that sense, they were. But they certainly were not equal in terms of the powers that were assigned to the branches.

There was qualitative and quantitative differences between the branches. Clearly Madison said the legislative authority predominates in a republican system of government.

If you look at the powers assigned in Article 1 of the Constitution, I mean the power of the purse. The executive can do what they want. You take away the money, the executive can’t do it. So the Congress had robust powers and I think the founders viewed the Congress as the focal point in constitutional government.

They thought the executive would have an important role, but that would really depend on the exigencies. Obviously, if you’re engaging in any type of military conflict, the president’s commander-in-chief, in foreign affairs the president had a very important role.

But, ultimately, even though the president could veto acts, the legislature could check that veto by overriding the veto.

So the president was important, but they also had just rebelled against the king and so they did not envision the exuecitve sas it is today with the massive bureaucracy.

And then of course they thought the courts were important but, as Hamilton said, by far the weakest of the three branches, because it could exercise neither force nor will but merely judgment.

It ultimately depends on the executive to enforce its judgments.

So that was kind of their view.

The court will play a role, but it will not be the dominant role in the constitutional system.

Well, I think today, having served in the Congress, to me, Congress is by far the weakest of the three branches.

Its most robust power — the power of the purse — it effectively has just put on autopilot. A lot of the spending is just automatic anyways, and then the rest they use continuing resolutions to just basically perpetuate government and perpetuate the status quo.

Very rarely are they actually using the power of the purse to discipline the executive branch, to rein in any type of executive overreach. And that is true, regardless of who’s in, which party or the other has been in.

So you have a really neutered legislative branch.”

Here’s the rest of his speech:

“Really, I did more in one week as governor than I did in six years in Congress. And I was active. I worked hard. It’s just, they don’t use the authority they have in an effective way and I think the constitutional system is discombobulated as a result.

Of course, the executive branch, when you look at what the president is able to do, some of that is just circumstances. We’re more involved internationally …

Most of the people that come to see me in Congress that had a problem with something with the federal government did not have a problem with anything we were actually passing in Congress. It was the agencies that were doing this and doing that. So most of the lawmaking was being done by the executive branch agencies.

So you had a massive bureaucracy grow and you had the the executive function really exercising both legislative and in some cases judicial powers, which is not something the founders would want to do..

Then you have the court which, in some respects, in some instances, I think, sees itself as being almost superior to the other branches and superior to the Constitution itself, even, and has gotten involved in a whole host of diff things that I think they probably had no jurisdiction to deal with.

But certainly the court has more of an impact than the Congress, day in and day out, even accepting only 80 cases a year.

So that’s kind of the system. It causes me to reflect.

I think it’s great you have two supreme court justices here, all these circuit judges, but the fact that that is viewed as a major achievement to me suggests that the courts are exercising too much power in the first place.

Joseph Story, I think he was confirmed within five days. Stephen field, cduring the civil war, Lincoln nominates him, within a week he’s confirmed. …

The fact that we have all these titantic struggles about who sits on that shows that the court is playing too big a role in our society.

There’s some that say, if we get enough originalists on the Supreme Court and the lower courts, then everything can be made right, and everything will be good.

I think that would be beneficial, don’t get me wrong.

But I have to think back to Federalist 51. The whole premise of the system is you’re not going to have the right people in the positions of power. That’s why they designed the system the way they did. Because they said that if angels were to govern men, then no government would be necessary.

That is something that the founders believed at their core — that you had to have a system of checks and balances to keep each branch in line.

So for me, I want to see great judges. I think that’s important. But I also want to see a system that works, even when you have the wrong people in power.

I think judicial power is too robust right now and I think the checks upon it are just simply inadequate.

Part of it is you can go back to the original design and see the checks on it, but also the checks that are there really aren’t used by the Congress any more.

One of the areas … that brings this into focus is the use of these nationwide injunctions by one district judge.

You have a national policy that’s put in place by the executive branch and then you have a flurry of lawsuits. So the executive wins in Boston. They win in New York. They win in Atlanta. They win in Minneapolis. They win in Las Vegas. But they lose in San Francisco. And so, guess what?

You win all those other ones, you lose in San Francisco, so the whole policy is put on ice? We could sit there and say, oh yeah, these are just rogue district judges. They’re part of the legal resistance. They’re resisting Trump and all this stuff and the Supreme Court will correct it. They have corrected a lot of these. And that is true. But what happens in the meantime?

You’ve got like two years that goes by where the policy is frozen, just because you have one district judge that puts it on hold? To me, one district judge issuing a nationwide injunction is not a legitimate use of judicial power. I’d like to see the U.S. Supreme Court rein that in.

But I think there’s probably things Congress can do to rein that in.

But that’s just the thing. The checks that are there – jurisdiction-stripping – hasn’t proven to be that effective.

Hamilton said, if a judge gets off the rails, he’ll get impeached and removed from office. That hasn’t proven to be successful.

In the Federalist, Hamilton suggests that if the judges get off the rails then the executive will just let that decision go but not really enforce it…

But I think that we’re in a situation now where whatever institutional counteraction that the founders envisioned, that’s just simply overwhelmed by the partisan interests that you see now in national politics.

There may be something that’s detrimental for your branch, but if that’s more for your team in the partisanship is going in a good direction, then you’re willing to see your own branch diminished in order to achieve the more partisan ends.

And that goes with both sides. But I think the founders believed that where you sit was where you were supposed to stand, when it comes to institutional power.

But that’s not really where it is. You do not see a robust defense across party lines of Congress’s prerogatives, of the executive’s prerogatives, when those prerogatives are challenged. It’s all situational. So the Congress really cares about its law-making authority when President Obama is doing some of these more legislative in nature executive orders but the same people that didn’t care about that, they now care about it when the president’s different, and vice versa.

So that to me is something that’s not going to be an effective check.

I think back. Lincoln, he had to confront the Dred Scott decision, which was obviously one of the worst cases the Supreme Court has ever decided.

And in his inaugural address, he said that if you have the whole policy of the whole country decided by the Supreme Court based on one lawsuit between two parties, then the people are no longer their own rulers. They’re essentially turning over thieir authority to this eminent tribunal.

Dred Scott said you cannot prohibit slavery in the territories. Well, the whole republican party was founded to prohibit slavery in the territories. So that’s kind of like saying that the Republican party itself was unconstitutional at the time.

So Lincoln, they went ahead and they did ban it, in 1862, in spite of Dred Scott.

But Lincoln had to wrestle with this before he was president.

So he said, OK, if a decision’s made, if we just don’t honor any decision, then you just have lawlessness. So he always honored it with respect to the parties and the case in Dred Scott.

But he said I’m just not ready to say that this settles the policy for the whole country infinitum.

And he went through different factors in his judgment. He believed that a unanimous decision carried more weight than a split decision. I think Dred Scott was 7-2. He said that if a decision broke down on party lines, then he’d be less likely to say that that settled policy for the whole country. And then he said if it was a novel interpretation that was at odds with how previous branches had viewed it — for example, Congress had enacted a lot of legislation that presumed they had the authority to regulate slavery in the territories — that that would be something he would consider.

But this was something that he really, really struggled with.

I don’t suggest that there’s easy answers to it. But what I would like to suggest is that in our system of government, it’s the constitution that is supreme. It’s not the judiciary that is supreme. Courts are part of the constitutional system but they do not hover above the constitutional system. And the more serious that other political actors take their role, I think the stronger our constitutional system will be.

So the point I’ll make is, originalism, I think is important to figure out how you do constitutional interpretation, how you apply legislative text, but also I consider originalism to be the structural constitution and how different people who are actually in these branches are going to use their authority to preserve their own institutional interests.

If we say originalism is only about interpreting a statute or only about interpreting the bill of rights, then I think we’re leaving so much on the table. And ultimately, even though an originalist judge I think would be more respectful of the separation of powers than a non-originalist judge, we’re kind of tacitly still saying that the judiciary is superior to the other branches of government. I don’t think that’s what the founding fathers envisioned. And I don’t think that’s what’s the best for the country.

So members of Congress, if I was still there, I would tell them to take their obligations to protect their institution seriously, and the same thing with the executive branch.

True originalism means all these branches checking and balancing each other just as the founding fathers intended.