A resolution to authorize representation by the Senate Legal Counsel in the case of Desmond Bellard v. Ronald Wyden, U.S. Senator.

— 576 — Mandate for Leadership: The Conservative Promise 38. Garland Memorandum, October 4, 2021; press release, “America First Legal Seeks Two Federal Investigations on Attorney General Merrick Garland’s Infamous Oct. 4th Memo Siccing the FBI on Concerned Parents,” America First Legal Foundation, March 14, 2022, https://aflegal.org/america-first-legal-seeks-two-federal- investigations-on-attorney-general-merrick-garlands-infamous-oct-4th-memo-siccing-the-fbi-on-concerned- parents/ (accessed February 3, 2023). 39. Luke Rosiak, “In Aftermath of Enemies List, School Committee Pledges to ‘Silence the Opposition,’” Daily Wire, March 27, 2021, https://www.dailywire.com/news/after-enemies-list-school-body-pledges-to-silence-the- opposition (accessed February 3, 2023). 40. The language of the Equal Protection Clause “reflects that ‘achieving equal protection against lawbreakers was at the core of the Clause’s objectives.’” Lefebure v. D’Aquilla, 15 F.4th 650, 669 (5th Cir. 2021) (Graves, J. dissenting) (quoting Lawrence Rosenthal, “Policing and Equal Protection,” Yale Law & Policy Review, Vol. 21, No. 53 (2003), p. 70) cert. denied, 212 L. Ed. 2d 791, 142 S. Ct. 2732 (2022)), https://casetext.com/case/ lefebure-v-daquilla-2 (accessed February 3, 2023). 41. See, for example, Portland Mayor Ted Wheeler’s actions in 2020 calling on federal officials—executing their mission to protect federal property and officials—to leave the city, saying, “They’re not wanted here” despite the fact that local reports found that “[o]ut of more than a thousand arrests reported by the Portland Police Bureau and other local law enforcement since late May 2020, only about 8.4% of the cases are still open” and that the “rest have been dismissed or listed as no complaint, which means authorities are not currently pursuing charges.” BBC News, “Portland Protests: Mayor Demands Federal Officers Leave City,” July 20, 2020, https://www.bbc.com/news/world-us-canada-53466718 (accessed February 3, 2023), and Hannah Lambert, “91% of Portland Protest Arrests Not Being Prosecuted,” Portland Tribune, January 5, 2021, https://archive.ph/ OSDbz (accessed February 3,2023). 42. Figure 4, “Trend in Average Guideline Minimum and Average Sentence Imposed for Armed Career Criminals Fiscal Years 2010–2019,” in U.S. Sentencing Commission, Federal Armed Career Criminals: Prevalence, Patterns, and Pathways, March 2021, p. 26, https://www.ussc.gov/sites/default/files/pdf/research-and-publications/ research-publications/2021/20210303_ACCA-Report.pdf (accessed February 3, 2023). 43. 18 U.S. Code § 924(e), https://www.law.cornell.edu/uscode/text/18/924 (accessed February 3, 2023). 44. S. 1586, Restoring the Armed Career Criminal Act, 117th Congress, introduced May 12, 2021, https://www. congress.gov/bill/117th-congress/senate-bill/1586 (accessed February 6, 2023). 45. This could require seeking the Supreme Court to overrule Kennedy v. Louisiana, 554 U.S. 407 (2008), in applicable cases, but the department should place a priority on doing so. 46. 21 U.S. Code § 801 et seq., https://www.law.cornell.edu/uscode/text/21/chapter-13/subchapter-I/part-A (accessed February 3, 2023). 47. 18 U.S. Code §§ 1961–1968, https://www.law.cornell.edu/uscode/text/18/part-I/chapter-96 (accessed February 3, 2023). 48. For more on this topic generally, see “Ensuring Enforcement and Administration of Our Immigration Laws,” infra. 49. See Paul J. Larkin, “Twenty-First Century Illicit Drugs and Their Discontents: The Scourge of Illicit Fentanyl,” Heritage Foundation Legal Memorandum No. 313, November 1, 2022), https://www.heritage.org/sites/default/ files/2022-11/LM313.pdf. 50. Jessica Rendall, “100,000 People Died from Drug Overdoses in the US in One Year, a Record,” CNET, November 18, 2021, https://www.cnet.com/health/medical/100000-people-died-from-drug-overdoses-in- the-us-in-one-year-a-record/ (accessed February 3, 2023). 51. U.S. Department of Justice, National Security Division, “Information About the Department of Justice’s China Initiative and a Compilation of China-Related Prosecutions Since 2018,” last updated November 19, 2021, https://www.justice.gov/archives/nsd/information-about-department-justice-s-china-initiative-and- compilation-china-related (accessed February 3, 2023). 52. Ronn Blitzer and Jake Gibson, “Biden DOJ Ending National Security Initiative Aimed at Countering China amid Complaints About Bias,” Fox News, February 23, 2022, https://www.foxnews.com/politics/doj-ending-china- initiative-national-security-program-bias (accessed February 3, 2023). 53. National Security Strategy, The White House, October 2022, p. 23, https://www.whitehouse.gov/wp-content/ uploads/2022/10/Biden-Harris-Administrations-National-Security-Strategy-10.2022.pdf (accessed February 3, 2023). See also ibid., p. 8. — 577 — Department of Justice 54. U.S. Department of Justice, “About DOJ: Our Mission,” https://www.justice.gov/about (accessed February 4, 2023). 55. 18 U.S. Code § 248, https://www.law.cornell.edu/uscode/text/18/248 (accessed February 4, 2023). 56. Danielle Wallace and Jake Gibson, “Pro-life Activist Mark Houck Pleads Not Guilty to Federal Charges After FBI Arrest,” Fox News, September 27, 2022, https://www.foxnews.com/us/pro-life-activist-mark-houck-pleads- not-guilty-federal-charges-fbi-arrest (accessed February 4, 2023). 57. Patty Knap, “Paul Vaughn, Pro-life Father of 11 Arrested by FBI Speaks Out,” National Catholic Register, October 18, 2022, https://www.ncregister.com/news/paul-vaughn-pro-life-father-of-11-arrested-by-fbi-speaks- out (accessed February 4, 2023). 58. 597 U.S. ___ (2022), https://supreme.justia.com/cases/federal/us/597/19-1392/case.pdf (accessed February 4, 2023). 59. Jonah McKeown, “TRACKER: Pro-Abortion Attacks in the U.S. Continue (Updated),” Catholic News Agency, last updated September 22, 2022, https://www.catholicnewsagency.com/news/251553/map-vandalism- attacks-continue-at-pro-life-centers-across-us (accessed February 4, 2023). 60. 28 U.S. Code § 516, https://www.law.cornell.edu/uscode/text/28/516 (accessed February 4, 2023). 61. 28 U.S. Code § 519, https://www.law.cornell.edu/uscode/text/28/519 (accessed February 4, 2023). 62. 295 U.S. 602 (1935), https://supreme.justia.com/cases/federal/us/295/602/ (accessed February 6, 2023). 63. 591 U.S. ___ (2020), https://www.supremecourt.gov/opinions/19pdf/19-7_new_0pm1.pdf (accessed February 6, 2023). 64. See Brief for the United States, 303 Creative v. Aubrey Elenis, No. 21-476, August 2022, https://www. supremecourt.gov/DocketPDF/21/21-476/234119/20220819182151542_21-476%20303%20Creative%20LLC%20 v.%20Elenis%20FINAL.pdf (accessed February 4, 2023). 65. Oral Argument Transcript, 303 Creative v. Aubrey Elenis, No. 21-476, December 5, 2022, https:// www.supremecourt.gov/oral_arguments/argument_transcripts/2022/21-476_8n59.pdf (accessed February 4, 2023). 66. Brief for the United States, Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, No. 16-111, September 2017, p. 9, https://www.scotusblog.com/wp-content/uploads/2017/09/16-111-tsac-USA.pdf (accessed February 4, 2023) (quoting Agency for International Development v. Alliance for Open Society International, Inc., 133 S. Ct. 2321, 2327 (2013), quoting in turn Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 61 (2006)). 67. Ibid., p. 10. 68. Ibid., pp. 10–11. 69. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943), https://tile.loc.gov/storage- services/service/ll/usrep/usrep319/usrep319624/usrep319624.pdf (accessed February 4, 2023). 70. Cohen v. California, 403 U.S. 15, 24 (1971), https://constitutionallawreporter.com/wp-content/uploads/2014/07/ Cohen-v_-California.pdf (accessed February 4, 2023). 71. West Virginia State Board of Education v. Barnette, 319 U.S. 640. 72. McCullen v. Coakley, 573 U.S. 464, 476 (2014), https://supreme.justia.com/cases/federal/us/573/12-1168/ case.pdf (accessed February 4, 2023) (quoting FCC v. League of Women Voters of California, 468 U. S. 364, 377 (1984)). 73. See, for example, 42 U.S. Code § 2000d, https://www.law.cornell.edu/uscode/text/42/2000d (accessed February 4, 2023); 42 U.S. Code § 2000e, https://www.law.cornell.edu/uscode/text/42/2000e (accessed February 4, 2023); 20 U.S. Code § 1681, https://www.law.cornell.edu/uscode/text/20/1681 (accessed February 4, 2023) 74. See “Advancing Equity and Racial Justice Through the Federal Government,” The White House, https://www. whitehouse.gov/equity/ (accessed February 4, 2023). 75. 18 U.S. Code § 1461, https://www.law.cornell.edu/uscode/text/18/1461 (accessed February 6, 2023). See also 18 U.S. Code § 1462, https://www.law.cornell.edu/uscode/text/18/1462 (accessed February 6, 2023). 76. 18 U.S. Code § 241, https://www.law.cornell.edu/uscode/text/18/241 (accessed February 6, 2023). 77. A similar argument could be advanced for the department’s other criminal law enforcement responsibilities such as those within the Environmental and Natural Resources Division. 78. See, for example, Paul Kiel, “Controversial USA Delivered ‘Voter Fraud’ Indictments Right on Time,” TPM Muckraker, May 1, 2007, https://web.archive.org/web/20070503021505/http://www.tpmmuckraker.com/ archives/003107.php (accessed February 4, 2023).

— 560 — Mandate for Leadership: The Conservative Promise The next conservative Administration should embrace the Constitution and understand the obligation of the executive branch to use its independent resources and authorities to restrain the excesses of both the legislative and judicial branches. This will mean ensuring that the leadership of the Department of Justice and its components understand the separation of powers, that pushback among the branches is a positive feature and not a defect of our system, and that the federal system is strengthened, not weakened, by disagreement among the branches. One example includes potentially seeking the overruling of Humphrey's Exec- utor v. United States.62 This case approved so-called independent agencies whose directors are not removable by the President at will. The Supreme Court has chipped away at Humphrey's Executor in cases like Seila Law v. Consumer Financial Protection Bureau,63 but the precedent remains. The next conservative Adminis- tration should formally take the position that Humphrey's Executor violates the Constitution's separation of powers. Zealously Guarding Other Constitutional Protections. The next conserva- tive Administration must ensure that the DOJ zealously guards the constitutional rights of all Americans in all that it does. This extends not only to rights implicated in the department’s criminal activities, but to all rights enjoyed by the American people—such as the First Amendment. The department should reject any invi- tation to limit these fundamental promises based on the political ideology of the speech at issue. A recent Supreme Court case illustrates the problems that arise when the DOJ takes a cramped interpretation of the First Amendment in service of a political ideology. In 303 Creative LLC v. Elenis, the department argued in favor of the government’s ability to coerce and compel what the lower courts all found to be pure speech.64 The oral argument made clear the department’s view that it was the viewpoint expressed that gave the government power to censor and compel speech. During oral argument, the United States took the remarkable position that government can compel a Christian website designer to imagine, create, and publish a custom website celebrating same-sex marriage but cannot compel an LGBT person to design a similar website celebrating opposite-sex marriage.65 In the government’s view, declining to create the latter website was based on an objec- tion to the message, while the former was based on status rather than message, but this argument inevitably turns on the viewpoint expressed. It means that the government gets to decide which viewpoints are protected and which are not—a frightening and blatantly unconstitutional proposition. Just as troubling, the government’s arguments against free speech are not lim- ited to the facts of 303 Creative. As Colorado admitted to the lower courts, all sorts of artists and speakers like speechwriters, photographers, and videographers can be compelled to design custom messages that violate their most fundamental convic- tions as long as it serves a certain viewpoint that the government wants to promote.

— 560 — Mandate for Leadership: The Conservative Promise The next conservative Administration should embrace the Constitution and understand the obligation of the executive branch to use its independent resources and authorities to restrain the excesses of both the legislative and judicial branches. This will mean ensuring that the leadership of the Department of Justice and its components understand the separation of powers, that pushback among the branches is a positive feature and not a defect of our system, and that the federal system is strengthened, not weakened, by disagreement among the branches. One example includes potentially seeking the overruling of Humphrey's Exec- utor v. United States.62 This case approved so-called independent agencies whose directors are not removable by the President at will. The Supreme Court has chipped away at Humphrey's Executor in cases like Seila Law v. Consumer Financial Protection Bureau,63 but the precedent remains. The next conservative Adminis- tration should formally take the position that Humphrey's Executor violates the Constitution's separation of powers. Zealously Guarding Other Constitutional Protections. The next conserva- tive Administration must ensure that the DOJ zealously guards the constitutional rights of all Americans in all that it does. This extends not only to rights implicated in the department’s criminal activities, but to all rights enjoyed by the American people—such as the First Amendment. The department should reject any invi- tation to limit these fundamental promises based on the political ideology of the speech at issue. A recent Supreme Court case illustrates the problems that arise when the DOJ takes a cramped interpretation of the First Amendment in service of a political ideology. In 303 Creative LLC v. Elenis, the department argued in favor of the government’s ability to coerce and compel what the lower courts all found to be pure speech.64 The oral argument made clear the department’s view that it was the viewpoint expressed that gave the government power to censor and compel speech. During oral argument, the United States took the remarkable position that government can compel a Christian website designer to imagine, create, and publish a custom website celebrating same-sex marriage but cannot compel an LGBT person to design a similar website celebrating opposite-sex marriage.65 In the government’s view, declining to create the latter website was based on an objec- tion to the message, while the former was based on status rather than message, but this argument inevitably turns on the viewpoint expressed. It means that the government gets to decide which viewpoints are protected and which are not—a frightening and blatantly unconstitutional proposition. Just as troubling, the government’s arguments against free speech are not lim- ited to the facts of 303 Creative. As Colorado admitted to the lower courts, all sorts of artists and speakers like speechwriters, photographers, and videographers can be compelled to design custom messages that violate their most fundamental convic- tions as long as it serves a certain viewpoint that the government wants to promote. — 561 — Department of Justice In fact, it was only a few years ago, in Masterpiece Cakeshop, that the govern- ment acknowledged the constitutional problems involved in compelling artists to speak government-favored messages. In that case, the United States acknowl- edged “a basic First Amendment principle that ‘freedom of speech prohibits the government from telling people what they must say.’”66 The department had it right when it argued that the government may not “compel the dissemination of its own preferred message,” because the First Amendment protects the “individual freedom of mind.”67 It was also correct when it argued that “[a]n artist cannot be forced to paint, a musician cannot be forced to play, and a poet cannot be forced to write.”68 The United States’ directly contrary position in 303 Creative is hard to explain based on anything other than its support for the message the State of Colorado was attempting to compel. It is black letter law that no official “can prescribe what shall be orthodox…or force citizens to confess by word or act their faith therein.”69 Rather, the First Amendment places “the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity.”70 As the Supreme Court has noted, government officials have frequently sought to “coerce uniformity of sentiment in support of some end thought essential to their time and country.”71 In the face of such attempts to coerce orthodoxy, the DOJ should maintain its commitment to upholding the Constitution’s neutral principles of free speech, which commit the government “to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.”72 Pursuing Equal Protection for All Americans by Vigorously Enforcing Applicable Federal Civil Rights Laws in Government, Education, and the Private Sector. Entities across the private and public sectors in the United States have been besieged in recent years by an unholy alliance of special interests, rad- icals in government, and the far Left. This unholy alliance speaks in platitudes about advancing the interests of certain segments of American society, but that advancement comes at the expense of other Americans and in nearly all cases vio- lates long-standing federal law. Even though numerous federal laws prohibit discrimination based on notable immutable characteristics such as race and sex,73 the Biden Administration— through the DOJ’s Civil Rights Division and other federal entities—has enshrined affirmative discrimination in all aspects of its operations under the guise of “equity.” Federal agencies and their components have established so-called diversity, equity, and inclusion (DEI) offices that have become the vehicles for this unlawful discrim- ination, and all departments and agencies have created “equity” plans to carry out these invidious schemes.74 To reverse this trend, the next conservative Adminis- tration should: