The Law Must Be King

0:00J. Michael Luttig:It's not the role of the Supreme Court of the United States to step in when Congress abdicates its job. It hasn't been in the past. It's not today. And today especially, it must not do so. because today the president has forced a collapse of the separation of powers in the United States of America by brute force. There is no separation of powers in our country at the moment.

0:42This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us all every day. I'm Diego Zambrano, a professor at Stanford Law School. Please subscribe or follow this feed on your favorite podcast app. That way you have access to all new episodes. All right, hello. Welcome to the Newcomb Center's Rule of Law Speaker Series. We are so pleased to welcome Judge Michael Ludig to Stanford today. We'd like to thank the Rohde Center for the Legal Profession and the Stanford Constitutional Law Center for co-sponsoring this event. Judge Ludig is a widely respected jurist and influential voice in American constitutional thought.

1:21He served on the U.S. Court of Appeals for the Fourth Circuit for 15 years, from 1991 to 2006. After retiring, Judge Ludig entered the corporate world, providing his advisory and legal services for both Boeing and Coca-Cola. At Boeing, he served as general counsel from 2006 to 2020. And prior to his judicial service, he also served in the Department of Justice in various capacities, including in the Office of Legal Counsel. So we're very excited to welcome him today.

1:49J. Michael Luttig:Thank you. Thank you, Gary. Appreciate it. Thank you. It is a special privilege for me to join you today at this Newcomb Center for the Rule of Law and to honor and salute my dear friend, Bill Newcomb. Bill was a national treasure for the rule of law in America. He was a world treasure for the rule of law around the globe. America is celebrating the 250th anniversary of its founding this year. Thomas Jefferson authored the Declaration of Independence for the American Colonists, which is dated July 4th, 1776. In September of 1787, after the Revolutionary War to secure our independence from the tyrannical King George III and the British Crown, we the people of the United States ordained and established the Constitution of the United States in order to form a more perfect union.

3:02And on July 4, 2026, we will celebrate the birth of the greatest nation on earth, the greatest experiment in self-government in the history of the world. for the 250 years since its founding America has been the envy of the world and the beacon of freedom and liberty because of the shining light of its democracy, constitution, and rule by law, not by men. But as we all know, today America is not the same beacon of freedom or the same envy of the world that it has been for a quarter of a millennium. nor, I fear, will it ever again be the very same beacon and envy. The question for we, the people of America, in this, the 250th anniversary of our nation's founding, is whether we are willing to do the sacred work necessary to return our country to its deserved place as the beacon of freedom and envy of the world.

4:11As we struggle to decide what we ourselves want for America and what we want our America to be and not to be, the entire world is anxiously awaiting our answer. The time of America's testing has finally come. The founders of this great nation feared these times in America. In this 250 years since its founding, America's institutions of government and governance and its institutions of democracy and of law are under vicious, unsustainable, and unendurable attack from within. speaking in a time of not dissimilar tumult in America nearly two centuries ago Abraham Lincoln urged a revival to the constitution and to the rule of law a renewed reverence for that great charter of our governance and guarantor of our liberty and our freedoms let reverence for the laws than 29-year-old Abraham Lincoln implored, be breathed by every American mother to the lisping babe that prattles on her lap.

5:39Let it be taught in schools, in seminaries, and in colleges. Let it be written in primers, spelling books, and in almanacs. Let it be preached from the pulpit, proclaimed in legislative halls, and enforced in the courts of justice. In short, Lincoln sermonized with the reverence he urged, let the Constitution and the rule of the law become the political religion of the nation. Today, America is in desperate need of such a revival to our Constitution and rule of law as our 16th President of the United States urged for the nation in 1838. A reawakening and quickening to the reverential imperatives of the Constitution from which we have strayed so very far.

6:34Winston Churchill said that courage is rightly esteemed, the first of human qualities, because courage is the quality which guarantees all others. We Americans must finally summon the courage that has eluded us in our all-consuming fear over the past decade of years. We must summon from deep within the courage that was once our founder's courage when, with a firm reliance on the protection of divine providence, they mutually pledge to each other their lives, their fortunes, and their sacred honor to secure their freedom. With the united support of a hopeful world, we Americans must overcome our fear.

7:32We must find our voices again. we must finally, finally stand up, raise our voices, and speak out against what we are witnessing in America today. After all, ours is a nation founded upon dissent and protest. America's protest against the British Empire 250 years ago is the single greatest protest in all of history. a revolutionary dissent from the tyranny and oppression of King George III until now, we Americans have never hesitated to defend, preserve, and protect our cherished liberties, our freedoms, and our fundamental constitutional rights from governmental tyranny whether it be from abroad or from at home.

8:34If we but find the courage to speak our truth to our government's power now, today, not tomorrow, as did the founders and our ancestors when their time of testing came, the United States of America will soon again be the envy of the world and it will endure forever as the beacon of freedom and liberty to the world. It's going to take the courage of the convictions of the American citizenry and young patriots like yourselves to defend, support, and protect our imperiled Constitution and rule of law on this America's 250th anniversary. Then, once we have finished this task at hand, we must finish the great task that yet lies ahead of us 250 years since our founding.

9:32We must re-found America again. We must rediscover the truths that we once believed to be self-evident. We must discover and reexamine, if need be, the ideals, the truths, the values, and the principles on which our country was founded and has flourished for two and a half centuries. We must reawaken ourselves to the visions, truths, beliefs, hopes, and dreams upon which the country was founded, which have bound our nation together into the more perfect union that we, the people, ordained and established, and that has made America the greatest nation on earth. We must turn this government back into the channel in which the framers of the Constitution originally placed it, said Abraham Lincoln.

10:38we need to shore up and reinforce the bulwark of our faltering democracy and law and re-fortify the institutions of our law and democracy. Preserving virtuous institutions is its own noble purpose, David French put so well. And as we re-fortify and re-strengthen our sacred institutions of law and democracy, We need to inspire among our citizenry a reverential revival to the Constitution and to the rule of law. Above all else, America is a government of laws and not of men. We are desperately in need of such a revival. we simply have no other choice than to pass with flying colors the test laid down for us by our ancestors to ensure that this nation so conceived in liberty and dedicated to the proposition that all men are created equal will long endure.

11:50Many of you here today are soon to be members of the profession of law. We in the law belong to one of the most honorable and honored, the most noble and nobilified, and the most venerable and venerated of professions. Of our founding fathers, 35 of the 55 delegates to the Constitutional Convention in 1787 were lawyers or had legal training. Of the framers of our Constitution, 32 of the 55 were lawyers. Of the Committee of Five tasked by the Continental Congress with writing the Declaration of Independence, four were lawyers. We in the legal profession are the guardians and stewards of the Constitution and rule of law, the foundations of our democratic nation and the guarantors of our liberty.

12:50We lawyers take an oath to support and defend the Constitution of the United States. We are uniquely qualified, positioned, and obligated to defend our Constitution, our rule of law, and our democracy. and we must do so today, tomorrow, and the next day, and until the present existential threat is no longer. If this all sounds as if the lawyer holds a special place in the constitutional order that is our democracy and that we are weighted by an almost sacred responsibility, it is because we do and we are. We have a high appointment and a high charge. There comes a time in every single one of our lives, whether that life be private and personal or public, when we are summoned to attest to our beliefs and convictions, when we are summoned to stand, bear witness and affirm what we believe and what we do not believe.

14:10This moment of truth and decision is our moment of calling. And the decision that we must make in that moment always comes at personal cost. When our call comes, if we answer with the courage of our convictions, we are heroes, whether we be heroes to our families, to our friends, our loved ones, our communities, or heroes to our country. We call those in public life and in public service heroes who, when summoned, stand, affirm, and act to preserve and protect all that we cherish and hold dear in America. We honor these men and women as heroes because when their time comes and they are summoned, they rise, they speak, and they act without having to decide whether to do so.

15:17For them, there is no decision to be made, for they made their decision long before. When their time comes, these heroes stare down fear, often profound fear, already knowing what they must do and what their sacrifice may be. We bear witness to and we affirm the heroism of these heroes in order that heroism will be forever encouraged in a world in which there are vanishingly few with the strength, the courage, and the will to speak and act when they are called upon. That is, in a world where there are fewer and fewer heroes. Students of Stanford University Law School, one of your moments of calling has come.

16:16Perhaps it is the first, but if it is, it almost certainly will not be the last. You are being summoned, as are all of us Americans, to stand, bear witness, and affirm that you believe in America, and that you believe in our Constitution and our rule of law, and that you believe in our democracy. you and we as members of the noble profession of law are being summoned to stand and affirm that we will honor the oath that we took to preserve, protect, and defend the Constitution of the United States. I challenge and entreat you today to commit and recommit yourselves to the Constitution and to the rule of law to pledge yourself to these and to their protection and preservation.

17:12I challenge you today to vow that it will be the law that triumphs over politics and not politics that triumphs over the rule of law. If you do this, you will have risen to what is your high calling to ensure that America remains a nation of laws, not of men. I leave you with the reminder of these inspiring, prophetic words from Thomas Paine, writing in his revolutionary pamphlet, Common Sense, in 1776. But where, say some, is the king of America? I'll tell you, friend, he reigns above. and doth not make havoc of mankind like the royal brute of Great Britain. Let a crown be placed thereon by which the world may know that so far as we approve of monarchy in America, the law is king.

18:30For as in absolute governments, the king is law, so in free countries the law ought to be king and there ought to be no other. But lest any ill use should afterwards arise, let the crown at the conclusion of the ceremony be demolished and scattered among the people whose right it is. Our task is great and noble and the hour's late. Godspeed, students of Stanford Law. Thank you.

19:22First of all, Judge Letting, I just want to thank you for coming here today. I mean, it's wonderful to have you here at Stanford. I'm sorry we couldn't give you California weather. I want to sort of almost go back to where you started. and one of the themes in your talk, which is a kind of sort of reclamation of the Constitution. I just want to get your sense as to almost whether that is enough at this point. And by that, I mean, are most of the threats to our democracy that we've seen over the last however many years, how much of them are necessarily a violation of, say, the Constitution or the law or just norms that we've been taking for granted for generations.

20:05So I'll just give you an example. Use of the pardon power or prosecuting political enemies or some other things that have happened. In a sense, has this become, you know, that what we're seeing out of the administration is finding vulnerabilities in the constitutional system and that it's not clear, sort of what did the mechanism look like for us to regain back some of the norms that constrain the behavior of previous presidents and previous administrations on these kinds of rule of law questions?

20:43J. Michael Luttig:Thank you for that question, as broad as it is, and all-encompassing as it is. But let me state this unequivocally, this is not an instance of President Trump finding vulnerabilities in the Constitution. It is anything but that. As you know, we can take judicial notice at this point that virtually every single initiative of this president since he returned to the White House in January last year has been facially unconstitutional or otherwise in violation of the laws of the United States. And now, 16 months thence, the federal courts of the United States have struck down, I think, almost every single one of them as being unconstitutional.

21:46J. Michael Luttig:And of course, my friend Michael McConnell was the driving figure behind the Supreme Court's invalidation of Donald Trump's unilateral and unconstitutional tariffs that he wrought upon the entire world. In fact, I guess I owe everything that I know to Mike McConnell, but The Atlantic asked me to write a piece on the first hundred days of Trump's term of office last year. And I chronicled all of the signature initiatives of his administration at that point, which essentially were all of them to date. And I said in that article that his entire administration was really built on two primary initiatives.

22:46J. Michael Luttig:That was the deportations and the tariffs. I have come to say recently that he had to prevail on the tariffs, or he had to force Jay Powell out of the chairmanship of the Federal Reserve Board if he were ever going to succeed in his presidency, it having been defined as the tariffs, the reckless tariffs, and the deportations. Well, it turns out that the Supreme Court of the United States acquiesced in, and has acquiesced in to this day, almost every one of those unlawful initiatives, with the exception of the tariffs case and at least a sliver of the deportations to foreign lands piece through its use of the so-called shadow docket, which is unprecedented in all of American history and hopefully in light of the revelations about that shadow docket in the New York Times a few days ago, we will see the end of that shadow docket disposition of what has been two dozen of the most fundamental constitutional questions that could ever be decided.

24:33J. Michael Luttig:Decided by this Supreme Court on an emergency basis without argument, without briefing, and upon written order, unexplained and unreasoned. Hopefully we've seen the end of that. Myself and probably other law students in this room aspire to work in the federal government and may have the opportunity to work in it at a time when it's kind of rebuilding a lot of institutions from the harm that the second Trump administration has caused to them. So I'm wondering what sort of advice you might have for a young lawyer who's working maybe at the DOJ, maybe in another part of the federal government, for how you can kind of be a good institutionalist in your day-to-day job when you're thinking about how these places might be rebuilt post the second Trump administration.

25:23I was hoping no one would ask me that.

25:26J. Michael Luttig:But we judges, we only tell the truth. That's our Achilles heel. Look, you know as much about the Department of Justice today as I do and America does. It has been corrupted from top to bottom. example after example that you're familiar with, but the several that were most pointed at this point are in a couple of cases. Well, first off, the Department of Justice lawyers have gone into the federal courts of the land over the past 16 months, dripping with contempt for not just the law, But perhaps even more importantly, dripping with contempt for the United States courts and even the particular judges.

26:26The particular judges, the Department of Justice lawyers, you know, with the Attorney General of the United States flying air cover for them. and supporting them and justifying

26:41J. Michael Luttig:every contemptuous word spoken. That's the state of our Department of Justice, as it were. The sacred Department of Justice, especially for all of you and all of us, until this Department of Justice, every person who's gone into the department that I know has literally viewed it as a sacred institution of law, of which they were part trustee for the time that they were there, and they held that trust every single day, especially when they were arguing in front of the courts of the United States. You know, I had the greatest law clerks in the world but apparently I had some that were not so great.

27:48J. Michael Luttig:John Eastman, the architect of Trump's effort to overturn the 2020 presidential election was a law clerk of mine. I don't think I've ever said this publicly, but after I advised Mike Pence on January 5th that he had no such power under the Constitution, it was a week later that John called me and said, Judge, I understand that you advised the vice president differently than I had. Would you mind sending me your written opinion of law? I said, written opinion of law, John? Nobody needs a written opinion of law to advise the President of the United States that it would be the gravest constitutional crime to attempt to overturn this election that he lost fair and square.

28:54and he expressed surprise.

29:00J. Michael Luttig:Well, when I testified before the January 6th committee a year or two later, I heard a voice that I recognized and I turned to the podium, you know, hundreds of cameras in your face and this voice said, Mr. Ludwig, I have this question for you. On the screen are Mr. Eastman's analysis for the president overturning the election on this screen is your statement that Mr. Eastman was wrong every single turn of his analysis. And this booming voice said, could you explain to the American people what you meant by your statement. And I turned to my law clerk, John Wood, and I said, Mr. Wood, I meant exactly what I said.

30:07And Mr.

30:08J. Michael Luttig:Wood said, I don't have any more questions for you, Judge Lodick. He called me immediately after, and I had something to say to him about asking such an asinine question in front of the world. But my other clerk is currently the Solicitor General of the United States. The New York Times called me about a month ago and said, Judge, would you ever have a comment? We're doing a profile on your clerk, John Sauer. And I said, you better believe I will. I said do you have your pen and paper right now and they said well you have some time to think about it I said I don't need any time to think about it take this down John Sauer's arguments to the Supreme Court are embarrassing for the Supreme Court and they are embarrassing to John Sauer as you well I hope you don't know this but apparently I didn't know it but apparently the solicitor general of the United States begins his briefs before the Supreme Court with I guess sort of a monologue of of social true social posts from the president and other statements from the president as to what the law is.

31:39J. Michael Luttig:Really? Before the Supreme Court of the United States. So that's to say that, and I'm not being short at all, no one wants to work at the Department of Justice in this administration. No one. Every lawyer who's there today, no matter their thoughts but especially if they oppose all of this this corruption they should walk out the door and that's a unfortunately that is the case in much of the government today tomorrow's another day We must pray. Yes, sir. My question for you is about Congress's role in all of this and this question that we're pondering. It seems to me that over the course of the last half century, the judiciary has developed all sorts of doctrines to punt questions to the politically accountable branches like the executive and to Congress.

32:51But now it seems that with Congress being absent in a lot of these major discussions and questions about the executive role, that the judiciary has to step into another role that it previously didn't consider. So I'm wondering what your thoughts are about that, if the role of the judiciary in handling actions by the executive should grow in an absent Congress and what you see, just generally what you see the balance between the judiciary and Congress should be in this agreement.

33:19J. Michael Luttig:It didn't. It doesn't now. And it shouldn't. It's not the role of the Supreme Court of the United States to step in when Congress abdicates its job. It hasn't been in the past. It's not today. And today especially, it must not do so. Because today, the president has forced a collapse of the separation of powers in the United States of America by brute force. there is no separation of powers in our country at the moment. And I would remind you what you learned in first year law school. The separation of the powers is really the genius of the Constitution, right? Constitution's all about power, power of the government.

34:24J. Michael Luttig:What was the genius of the American experiment? We separated the three powers effectively creating the third power, then we separated those powers so that each would be checked and balanced by the others. Today, the argument that Congress has been abdicating its responsibility for decades now is indisputably true, but never like today. In the past, the argument has been primarily that Congress was legislating, but not legislating in a way that would provide substantive guidance to the courts. And that was true. It will always be true. That's not what's going on today. under the Constitution of the United States, the president has no power whatsoever to impose tariffs, let alone global tariffs, let alone global tariffs of usurious portions that change with the day.

35:47J. Michael Luttig:He has no power at all. That's why the Supreme Court struck down what he's done. The only and very, very limited power that the president has to impose tariffs is in an emergency situation. Think an invasion by a foreign country, an attack on a foreign country. And then by statute, that power is very limited in scope, kind, degree, and duration. The President of the United States knew that when he ordered the imposition of the tariffs. War, Michael and I have been on the inside in many of the discussions of war and the war powers over the past 50 years. The Constitution contemplates really a continuous tension because it supposes that no president would ever actually go to war, commit the United States to a full-fledged war without Congress.

37:13J. Michael Luttig:Well, that supposition was good for 250 years. And then Donald Trump, who we now know had no earthly idea what he was doing. He couldn't articulate any objectives, much less the objectives. He thought that we'd be at war in the Middle East. for a couple of days. He thought he could whatever, send a bomber or two, you know, and make a strike or two. We're out. You know, there's peace in the Middle East. Well, we're, you know, after two months, I read this morning, like you did, that the peace talks have now broken down for the umpteenth time, and the vice president has delayed his trip to further negotiations.