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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 Executor v. United States. 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, but the precedent remains. The next conservative Administration should formally take the position that Humphrey’s Executor violates the Constitution’s separation of powers.

Zealously Guarding Other Constitutional Protections. The next conservative 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 invitation to limit these fundamental promises based on the political ideology of the speech at issue.

Arecent 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.™ 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.® In the government’s view, declining to create the latter website was based on an objection 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 limited 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 convictions as long as it serves a certain viewpoint that the government wants to promote.