Cover photo
David Rivkin
Works at Baker Hostetler
Attended Georgetown University
Lives in Washington, DC area
55 followers|7,779 views


David Rivkin

Shared publicly  - 
Congress Can Respond to Putin With More Sanctions

By PAULA J. DOBRIANSKY And DAVID B. RIVKIN JR., Oct. 4, 2015 6:11 p.m. ET

From Ukraine to Syria, the Obama administration has consistently misread Russian President Vladimir Putin ’s objectives and the implications of cooperating with him. This has led to costly failures, but the administration is unlikely to change its approach. Congress need not sit idle too. By enacting new sanctions on Russia, U.S. lawmakers can send a strong signal to Moscow that its continued aggression against Ukraine and growing complicity in a genocidal war in Syria will come at a heavy price.

After Russia annexed Ukraine’s Crimea in 2014, the Obama administration and many U.S. allies imposed sanctions on Russian businesses and individuals. But those measures clearly haven’t been effective in discouraging Mr. Putin’s quest to exert Russian power and influence.

In Ukraine, despite the supposed cease-fire effected by the Minsk Accords negotiated by Germany, France, Ukraine and Russia, Moscow-supported aggression continues in the contested east. Russian troops remain in the region, as an extensive Sept. 14 report from the Atlantic Council documents, and Reuters has reported that new Russian military bases are being built.

In Syria, Mr. Putin, under the guise of fighting Islamic State, supports the Bashar Assad regime, which has used barrel bombs and chemical weapons in slaughtering tens of thousands of civilians, mostly Sunni Muslims—making Russia complicit in, and legally accountable for, these actions. The Obama administration over the past week has hinted that it might cooperate with Russia’s anti-ISIS campaign.

The danger of association with an aggressor like Mr. Putin, who is also working with Iraq and Iran, can be seen in Russian airstrikes over the past few days directed not at ISIS but at other opponents of the Assad regime. The Obama administration’s initial seeming openness to working with Mr. Putin in Syria has already compromised the White House’s ability to hold Moscow accountable on any front, including for its aggression in Ukraine.

Under the U.S. Constitution, the president has formidable authority for conducting foreign policy, but there are several steps—practical and symbolic—that Congress can take that would demonstrate a resolve toward Russia that hasn’t been forthcoming from the Obama administration.

On the symbolic side, Congress can legislate a finding, based on ample evidence, that the Russian military has committed war crimes in Ukraine, and is aiding and abetting the Assad regime’s genocide and Iran’s terrorism-sponsoring activities. Using the congressional bully pulpit can help drive the public debate, especially during the 2016 presidential election campaign.

Congress can also enact new sanctions that will have an immediate and profound effect—starting with the Russian oil-refining industry.

Despite Mr. Putin’s far-reaching strategic aspirations, Russia is punching well above its weight. The Russian economy continues to shrink, buffeted by falling oil prices and Western sanctions, and 2014 capital flight has exceeded $150 billion. Hundreds of Russian casualties in Ukraine are causing discontent, with Russian media reporting how Russian contract soldiers—in the part-volunteer, part-draftee military—are refusing to deploy to Ukraine or Syria. According to the Moscow-based independent polling organization Levada, fewer than 14% of Russians support military intervention in Syria.

Russia’s greatest vulnerability may be its refineries. While Russia is one of the world’s top energy producers, its refining facilities are antiquated, with low product quality, no spare capacity, and infrastructure in desperate need of significant investment. The refining infrastructure is so weak that Russia ran out of gasoline in 2011, precipitating shortages and substantial popular discontent. Russian media reported that the head of the majority-government-owned Rosneft oil company, Igor Sechin, sent Mr. Putin a letter on July 15 warning of a major shortfall in refined products by 2016-17 unless the refining sector gets emergency financial assistance.

Most of Russia’s approximately 50 major refineries date to the Soviet period. According to a 2014 report prepared for Russia’s parliament, the refiners also require a steady supply of Western, particularly American, equipment. Current U.S. sanctions apply only to new Russian oil and gas production projects. But an embargo—even if only a unilateral one by the U.S.—on exports of refinery pumps, compressors, control equipment and catalytic agents would cause widespread shortages of refined products, putting tremendous pressure on Russia’s civilian economy and Moscow’s ability to carry out military operations. The Putin regime would suffer major political damage.

President Obama might veto such refinery sanctions legislation because of its potentially drastic effect, but as Russia’s behavior becomes ever more outrageous, he might not be able to summon Democratic support as readily as he did for the Iranian nuclear deal. In any case, Congress would do well to make U.S. policy toward Russia a matter for serious discussion during an election year—and to remind Mr. Putin that with the Obama administration’s days dwindling, a significant course correction in U.S. foreign policy could be on the horizon.

Ms. Dobriansky is a former undersecretary of state for democracy and global affairs in the George W. Bush administration. Mr. Rivkin is a constitutional lawyer who served in the Justice Department under Presidents Reagan and George H.W. Bush.

In The Wall Street Journal, Paula J. Dobriansky and David B. Rivkin write that Congress can respond to increased Russian aggression with more sanctions against the Putin regime.
Jana Lynn Johnson's profile photo
Your ass Day absolutely Night long CRAZY lunatic as obviously OBAMA TROLL! 
Add a comment...

David Rivkin

Shared publicly  - 
A side agreement could void the Iran deal

By Mike Pompeo and David B. Rivkin Jr., September 6 2015 7:07PM in the Washington Post

The Iran Nuclear Agreement Review Act of 2015, which requires the president to submit to Congress the nuclear agreement reached with Iran, represents an exceptional bipartisan congressional accommodation. Instead of submitting an agreement through the constitutionally proper mechanism — as a treaty requiring approval by a two-thirds majority in the Senate — the act enables President Obama to go forward with the deal unless Congress disapproves it by a veto-proof margin. Unfortunately, the president has not complied with the act, jeopardizing his ability to implement the agreement.

The act defines “agreement,” with exceptional precision, to include not only the agreement between Iran and six Western powers but also “any additional materials related thereto, including . . . side agreements, implementing materials, documents, and guidance, technical or other understandings, and any related agreements, whether entered into or implemented prior to the agreement or to be entered into or implemented in the future.” But the president has not given Congress a key side agreement between Iran and the International Atomic Energy Agency (IAEA). This document describes how key questions about the past military dimensions of Iran’s nuclear program will be resolved, as well as the precise operational parameters of the verification regime to which Tehran will be subject.

This omission has important legal consequences. At the heart of the act is a provision, negotiated between Congress and the White House, freezing the president’s ability to “waive, suspend, reduce, provide relief from, or otherwise limit the application of statutory sanctions with respect to Iran” while Congress is reviewing the agreement.

That review period was supposed to take 60 days and is triggered the day the president submits the agreement to Congress. However, because the president failed to submit the agreement in full, as the law requires, the 60-day clock has not started, and the president remains unable lawfully to waive or lift statutory Iran-related sanctions. Indeed, since the act also provides for the transmittal of the agreement to Congress between July 10 and Sept. 7, the president’s ability to waive statutory sanctions will remain frozen in perpetuity if Congress does not receive the full agreement Monday .

Congress must now confront the grave issues of constitutional law prompted by the president’s failure to comply with his obligations under the act. This is not the first time this administration has disregarded clear statutory requirements, encroaching in the process upon Congress’s legislative and budgetary prerogatives. The fact that this has happened again in the context of a national security agreement vital to the United States and its allies makes the situation all the more serious.

For Congress to vote on the merits of the agreement without the opportunity to review all of its aspects would both effectively sanction the president’s unconstitutional conduct and be a major policy mistake. Instead, both houses should vote to register their view that the president has not complied with his obligations under the act by not providing Congress with a copy of an agreement between the IAEA and Iran, and that, as a result, the president remains unable to lift statutory sanctions against Iran. Then, if the president ignores this legal limit on his authority, Congress can and should take its case to court.

Mike Pompeo, a Republican, represents Kansas in the House and is a member of the Permanent Select Committee on Intelligence. David B. Rivkin Jr., a constitutional litigator and a senior fellow at the Foundation for the Defense of Democracies, served in the Justice Department and the White House Counsel’s Office during the Reagan and George H.W. Bush administrations.

If Obama doesn’t give Congress all required materials, he can’t lift sanctions.
Add a comment...

David Rivkin

Shared publicly  - 
Symposium: Correcting the “historical accident” of opt-out requirements

By David Rivkin and Andrew Grossman, 27 August 2015 in SCOTUSblog

Whatever the fate of mandatory “fair share” payments that nonmembers are often required to make to fund public-sector unions’ collective bargaining activities, Friedrichs will likely mark the end of requirements that dissenting workers take action to “opt out” of funding public-sector unions’ political and ideological activities, the subject of the second question that the Court agreed to consider. Although less prominent than the forced-payments issue, ending opt-out requirements would correct a serious anomaly in the Court’s First Amendment jurisprudence, one that facilitates tens of millions of dollars annually in union political spending of funds obtained through inertia, trickery, and coercion.

If everyone agrees that forcing public employees to subsidize a labor union’s political or ideological speech impinges their First Amendment rights – and the Court has been unanimous on that point for decades – then what possible justification is there for requiring workers who’ve declined to join the union to go through the arduous process of opting out from making such payments year after year? Put differently, why not allow workers who support a union’s political activities to opt in to funding them, rather than require dissenting workers to play a game of cat and mouse to stop the union from taking their money to fund ideological causes they likely oppose? We’ve never heard a compelling justification for the current “opt out” regime and, like the majority in Knox v. SEIU, suspect that there isn’t one.

Instead, as the Court recounted in Knox, “acceptance of the opt-out approach appears to have come about more as a historical accident than through the careful application of First Amendment principles.” In early cases, workers subject to the Railway Labor Act sought relief from being forced to fund unions’ political activities, and the Court assumed (the statute saying nothing one way or the other) that allowing them to affirmatively object to funding such expenditures would be sufficient to protect their rights. Without any reasoning or analysis, the Court in Abood further assumed that the opt-out approach discussed in those prior statutory cases was sufficient to remedy the First Amendment violation when a public employee is coerced into subsidizing political or ideological speech by the threat of loss of governmental employment.

But that was a dubious assumption, for both legal and practical reasons. As a legal matter, the opt-out approach plainly violates the cardinal rule that procedures involving compelled speech and association must be “carefully tailored to minimize the infringement” of First Amendment rights. Under the opt-out approach, dissenting workers bear the risk that, if they are unsuccessful in following the opt-out procedure reluctantly administered by the union, their money will be used to further political and ideological ends with which they do not agree. The labor union, whose constitutional rights are not at stake, bears no risk at all – by default, it gets the money.

As a practical matter, labor unions have not made it easy for workers to opt out of funding political activities. No union of which we’re aware presumes that workers who have declined to join it – and therefore presumably don’t support its political activities – wish to opt out from subsidizing those activities. Nor do unions presume that workers who opted out last year, the year before, etc., might wish to do so again this year – workers must go through the process of objecting every single year, except for where courts have mandated otherwise. Opt-out requests are typically permitted only during an annual “objection period,” and unions do the bare minimum required by law to publicize workers’ opt-out rights. Other materials provided by the union often attempt to sow confusion over opting out. For example, the California Teachers Union enrollment form gives the impression that teachers can join the union without funding its political activities; the relevant checkbox, however, only concerns whether a portion of dues will be allocated to the union’s political action committee. Forms used by other unions give workers the opportunity to opt out of relatively small PAC contributions and receive a refund. In either instance, workers still pay the full subsidy for the union’s own political activities. The point of this chicanery is to confuse workers into thinking that they’ve exercised their opt-out rights when they actually haven’t. And then there’s the intimidation and harassment often leveled against workers attempting to exercise their opt-out rights.

These difficulties arise from the inherent conflict of interest in requiring a labor union to administer the procedures for workers who object to funding its own activities. Of course the unions don’t want to make it easy to opt out. As a result, the courts have been forced to constantly police unions’ grudging administration of the opt-out process. It is strange, when you think about it, that workers’ First Amendment right to be free from compelled speech and association is at the mercy of the very organizations that the workers are seeking to resist.

These issues came to a head in Knox, a 2012 decision concerning a challenge by dissenting workers forced to pay into an “Emergency Temporary Assessment to Build a Political Fight–Back Fund” intended for politicking. Because “a special assessment billed for use in electoral campaigns” went beyond anything the Court had previously considered, it gave the opt-out issue a fresh look. Applying the general First Amendment principle that “individuals should not be compelled to subsidize private groups or private speech,” it held that a public-sector union imposing a special assessment or dues increase partway through the year may not exact any funds from nonmembers without their affirmative consent.

This affirmative consent, or “opt-in,” requirement drew criticism from Justice Sonia Sotomayor (in concurrence, joined by Justice Ruth Bader Ginsburg) and Justice Stephen Breyer (in dissent, joined by Justice Elena Kagan). Justice Sotomayor agreed that the union was constitutionally required to provide an additional notice to workers and opportunity to make their choice, but she faulted the majority for (in her view) reaching beyond those issues to hold that affirmative consent was required. Justice Breyer, in turn, argued that the union had reasonably complied with the Court’s precedents by reducing the special assessment charged to workers who had already objected by the proportion of total dues that it had spent on political activities in the previous year.

Notably, neither separate opinion offered any defense on the merits of requiring workers to opt out from subsidizing unions’ political speech. Although recognizing that the majority “cast serious doubt on longstanding precedent,” Justice Sotomayor made no attempt to address the validity or correctness of that precedent. Justice Breyer deemed the majority’s approach “particularly unfortunate” because its logic seems “to apply, not just to special assessments, but to ordinary yearly fee charges as well,” which means that “the opinion will play a central role in an ongoing, intense political debate” – one that he would have the Court avoid entirely. The most he ventured on the merits of the question was that an opt-in requirement might not do much good, because “the additional protection it provides primarily helps only those who are politically near neutral.”

But even that tepid objection falls apart under scrutiny. The reality is that the burden of opt-out requirements has artificially suppressed objections. According to the Bureau of Labor Statistics, thirty-three percent of state government workers and forty-six percent of local government workers are represented by labor unions. About eight percent of those workers have declined union membership – a prerequisite to opting out of paying political subsidies. Yet polls consistently report that about a quarter of state and local employees subject to collective-bargaining agreements identify themselves as Republicans, with another thirty percent or so identifying as independent. It is no secret that unions’ political expenditures overwhelmingly favor the Democratic Party and its candidates – for example, ninety-eight percent of the American Federation of Teachers’ donations go to Democrats. This means that, due to opt-out requirements, more than three million public-sector workers are paying to subsidize a political party that they have refused to join, with one million of those workers identifying as members of the opposing party.

So far as we’re aware, there isn’t any good argument in favor of requiring employees to bear the often-considerable burden of objecting so as to avoid paying into labor unions’ political coffers. But there is an honest one. In a moment of candor, a teachers’ union explained in litigation that it favors opt-out requirements because they allow unions to “take advantage of inertia on the part of would-be dissenters who fail to object affirmatively.” In fairness, one can certainly understand why labor unions would want to collude with state and local politicians to exact political funds from unwilling employees who may not know how to satisfy convoluted opt-out procedures or are reluctant to bear the burden of doing so.

But it’s more difficult to understand how such a scheme could ever withstand the careful application of First Amendment principles.

David B. Rivkin, Jr., and Andrew M. Grossman practice appellate litigation in the Washington, D.C., office of Baker & Hostetler LLP. They filed an amicus brief in support of certiorari in Friedrichs v. California Teachers Association on behalf of the Cato Institute, where Mr. Grossman is an adjunct scholar.

David B. Rivkin, Jr., and Andrew M. Grossman practice appellate litigation in the Washington, D.C., office of Baker & Hostetler LLP. They filed an amicus brief in support of certiorari in Friedrichs v. California Teachers Association on behalf of the Cato Institute, where Mr. Grossman is an adju
Add a comment...

David Rivkin

Shared publicly  - 
The Supreme Court's bad call on Affordable Care Act

By DAVID B. RIVKIN JR., ELIZABETH PRICE FOLEY, Los Angeles Times, June 29, 2015

In King vs. Burwell, the Supreme Court ruled that the Affordable Care Act permits individuals who purchase insurance on the federal exchange to receive taxpayer subsidies. Though the King decision pleases the ACA’s ardent supporters, it undermines the rule of law, particularly the Constitution’s separation of powers.

Under Section 1401 of the ACA, tax credits are provided to individuals who purchase qualifying health insurance in an “[e]xchange established by the State under Section 1311.” Section 1311 defines an exchange as a “governmental agency or nonprofit entity that is established by a State.”

As Justice Antonin Scalia's dissent notes, one “would think the answer would be obvious” that pursuant to this clear language, subsidies are available only through state-established exchanges.

Yet the King majority ignored what the ACA actually says, in favor of what the Obama administration believes it ought to have said, effectively rewriting the language to read “exchange established by the State or federal government.”

Scalia observes that “Words no longer have meaning if an Exchange that is not established by a State is ‘established by the State.’” Like Humpty Dumpty in Lewis Carroll's “Through the Looking Glass,” the majority claims that when the court is asked to interpret a word, “it means just what [the court chooses] it to mean — neither more nor less.”

To reach the desired meaning, the King majority declared that “an exchange established by the State” was somehow ambiguous, enabling it to ignore the text and advance instead its vision of the ACA’s overarching purpose. But the precedent upon which the King majority relied for this contextual interpretation, FDA vs. Brown and Williamson Tobacco Corp. (2000), involved a fundamentally different situation.

In that case, a group of tobacco manufacturers challenged the Food and Drug Administration’s authority to regulate tobacco products as “medical devices” or “drugs.” The court concluded that the words “device” and “drug” did not directly address tobacco and were consequently ambiguous.

When judges take it upon themselves to "fix" a law -- or to bless an executive "fix" -- they diminish political accountability by encouraging Congress to be sloppy.
The court looked beyond the Food, Drug and Cosmetic Act, or FFDCA, for contextual clues, discovering that Congress had subsequently passed several statutes allowing the continued sale of tobacco products, while regulating their labeling and advertising. This suggested to the justices that Congress did not intend tobacco to be regulated under the FFDCA as a drug or device.

In King, by contrast, there were no subsequent statutes providing contextual clues about congressional intent. The only reliable evidence was contained in the act’s language itself. This extra-textual approach is deeply problematic for the rule of law, since discerning a statute’s meaning from its context is always a dicey proposition, necessitating judicial inquiry into inchoate matters such as the law’s “purpose.”

Ascertaining a law’s purpose from evidence outside its text is virtually impossible, given that Congress consists of 535 members, each of whom is motivated by different purposes. This is why, at least until King, the court has not resorted to contextual interpretation when the text is plain.

In the words of Palmer vs. Massachusetts (1939), contextual interpretation is a “subtle business, calling for great wariness lest what professes to be … attempted interpretation of legislation becomes legislation itself.” Yet this is exactly what happened in King: Attempted interpretation became legislation itself. By ignoring what the ACA actually says, in favor of what the King majority believes the statute ought to have said or what it thinks Congress meant to say, the court upset the entire constitutional balance.

The King majority acknowledged that the ACA is full of “inartful drafting” and was written “behind closed doors, rather than through the traditional legislative process.” It also conceded that it was passed using unusual parliamentary procedures, and “[a]s a result, the Act does not reflect the type of care and deliberation that one might expect of such significant legislation.”

Despite all these flaws, the majority felt compelled to save Congress, and the ACA, from its own foibles. Specifically, the King majority believed that applying the ACA’s plain meaning “would destabilize the individual insurance market in any State with a Federal Exchange, and likely create the very ‘death spirals’ that Congress designed the Act to avoid.”

Even if a loss of subsidies would have exacerbated the death spiral, courts are emphatically not in the law-writing business. Article I, Section 1 of the Constitution grants “all” lawmaking power to Congress,” not merely “some.” The job of the judiciary is to implement laws, warts and all.

When judges take it upon themselves to “fix” a law — or to bless an executive “fix” — they diminish political accountability by encouraging Congress to be sloppy. And they bypass the political process established by the Constitution’s separation of powers, arrogating to itself — and the executive — the power to amend legislation.

This leads to bad laws, bad policy outcomes and fosters the cynical belief that “law is politics.”

David B. Rivkin Jr. is a constitutional litigator at BakerHostetler who served in the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Elizabeth Price Foley is Of Counsel at BakerHostetler and a professor of constitutional law at Florida International University College of Law.

In King vs. Burwell, the Supreme Court ruled that the Affordable Care Act permits individuals who purchase insurance on the federal exchange to receive taxpayer subsidies. Though the King decision pleases the ACA’s ardent supporters, it undermines the rule of law, particularly the Constitution’s separation of powers.
Add a comment...

David Rivkin

Shared publicly  - 
Supreme Court routs raisin racket

By David B. Rivkin, Jr., and Andrew M. Grossman -- 22 June 2015 in USA Today

Constitutional law isn't all conflict. It may seem that way as the Supreme Court barrels along to the conclusion of another term, with contentious cases concerning same-sex marriage, Obamacare, and seemingly every other issue plucked from the headlines. But the high-profile controversies obscure that, as much as the Supreme Court may be divided, the justices are able to come together on a great many important issues.

For example, raisins. Yes, those tiny wrinkled morsels. The tiny snacks are also the subject of a major challenge to government power — one that has revealed surprising agreement on the Court.

Marvin and Laura Horne have been growing raisins for 40 years on their family's California farmland. After they decided to dry the raisins for themselves, rather than sell their grapes to a processor, they found themselves in the cross hairs of the federal government, facing fines of nearly a million dollars.

Their crime? Refusing to allow the government to seize over a million pounds​ of the raisins they had grown and processed themselves.

It is the dirty little secret of American agriculture that raisins and other crops, despite being produced by private parties, are actually under the control of the federal government, which colludes with major producers to fix prices and control the market.

These so-called "marketing programs" are a relic of the New Deal, a time when the U.S. response to the threat of Soviet five-year plans was to adopt our own, but better. The rest of the economy that was once subject to central planning has since embraced the free market. Farming is among the last holdouts.

Many of these programs empower producers to use the power of the government to cap supply. In the raisin program, for example, a board made up raisin processors sets a "reserve percentage" of the annual crop that must be set aside for the government to use as it pleases. Some of those raisins are used in government programs, while others are sold, with the proceeds used to subsidize exports. Producers, however, have no guarantee that they'll receive a single dollar for the tons of produce they're forced to turn over to the government.

The Hornes challenged this scheme as an unconstitutional taking of private property. And just this week, the Supreme Court agreed, in an 8-1 decision.

The government argued that raisin producers actually benefit, because restricting the supply of raisins drives up the prices paid to producers — at the expense of consumers, of course. The Court held, however, that any hypothetical benefit simply doesn't matter: the government simply can't take your property, without any compensation, and then tell you that it's for your own good.

Whether or not the Hornes in particular would have benefited from having their crops seized is a matter of disagreement— they say the price increase doesn't come close to covering their losses. But what's beyond debate is that the raisin program deprived the Hornes of any real interestin their own property.

That result, and the broad support for it on the Court, wasn't inevitable. While the Court's conservatives have long been wary of governmental overreaching, its liberals regularly vote to uphold broad and often intrusive regulatory authority.

What brought the justices together in this case may be a shared wariness of government cronyism. While many programs can at least be defended as advancing the public interest, the raisin marketing program only benefits private parties like major producers and exporters at the expense of other private parties like smaller farms and consumers. A small group of winners profits, while everyone else loses. That's enough to make even justices who see few limits on federal power to intervene in markets think twice.

There's a lesson in this for the rest of us. As Republicans and Democrats bicker over the budget, the economy, health care, and just about everything else, they should be able to come together on a non-partisan reform agenda taking aim at government cronyism and corporate welfare. The political parties may have different visions of the public interest, but we should all be able to agree that government has no business serving private interest.

David B. Rivkin, Jr., and Andrew M. Grossman practice constitutional law at the law firm Baker & Hostetler.​

The Supreme Court ruled today in favor of the free market and Fresno raisin farmer, Marvin Horne.
Add a comment...

David Rivkin

Shared publicly  - 
Hillary's Unlawful Plan to Overrule Voter ID Laws

June 11, 2015 7:26 p.m. ET

Declaring that Republican-controlled states have “systematically and deliberately” tried to “disempower and disenfranchise” voters, Hillary Clinton has called for a sweeping expansion of federal involvement in elections. In a speech last week in Houston, laying out what promises to be a major campaign theme, Mrs. Clinton called for automatic voter registration at age 18, a 20-day early-voting period and a maximum 30-minute wait period to vote.

She has also endorsed the idea of a federal law permitting convicted felons to vote and allowing individuals, such as students, who reside in one state to vote in another. All of these federal mandates would augment and make more onerous an unconstitutional election-regulating federal statute known as the “Motor Voter” law enacted during her husband’s White House tenure.

A federal takeover of election laws—and rolling back state voter-ID laws intended to discourage election fraud—is a high priority for progressives. The billionaire financier George Soros reportedly has pledged $5 million to bankroll legal challenges to laws like those that Mrs. Clinton decries. Part of the effort is intended simply to galvanize the Democratic base by stoking a sense of grievance, but the strategy should be taken seriously—and rebutted as unconstitutional.

The Constitution gives Congress the power to regulate federal elections, not state ones. It also distinguishes between the regulation of presidential versus congressional elections. Specifically, under Article I, Section 4—the Elections Clause—while the states have primary responsibility for regulating congressional elections, Congress can pre-empt their rules by regulating “times, places and manner of holding Elections for Senators and Representatives,” except that Congress cannot regulate the “places of chusing [sic] Senators.”

For presidential elections, the Constitution restricts Congress’s power and grants states an even more robust role—which is why the president is elected by the votes of the state-driven Electoral College, rather than directly by the people. Accordingly, Article II, Section 1 of the Constitution permits congressional regulation only of “the time of chusing the Electors, and the Day on which they shall give their Votes.”

With this constitutional backdrop, Mrs. Clinton’s proposals as applied to presidential elections would be entirely unconstitutional. They go well beyond regulating the time of choosing the electors for the Electoral College and the date for voting.

As applied to congressional elections, Mrs. Clinton’s proposals fare no better. Her goal of extending voter qualification to felons and transient individuals such as college students is patently unconstitutional. The Constitution establishes some categorical voting entitlements, primarily relating to gender (the 19th Amendment), age (the 26th Amendment) and race (the 15th Amendment). The Constitution doesn’t grant Congress the authority to determine voter qualifications. As the Supreme Court said in Arizona v. Inter Tribal Council of Arizona (2013), “the Elections Clause empowers Congress to regulate how federal elections are held, but not who may vote in them.”

Mrs. Clinton’s proposals regarding voter registration, 20-day early voting periods and maximum 30-minute wait times are also constitutionally wanting. Congress’s Election Clause authority to regulate the “time, place and manner” of congressional elections was meant to allow regulation of how those elections are carried out. But it was not intended to give Congress carte blanche to regulate all aspects of voting. The clause, particularly given its capacious word “manner,” must—like all other constitutional provisions—have a meaningful limiting principle.

That principle is in the Supreme Court’s federalism-protecting anti-commandeering and anti-coercion doctrines. In New York v. U.S. (1992) the court declared that Congress cannot “commandeer” state legislatures “to enact or administer a federal regulatory program.” In Printz v. U.S. (1997) the court expanded the principle to state executive officials, invalidating federal gun laws requiring state and local law enforcement officers to run criminal-background checks.

Congress can use its Elections Clause power to pre-empt state laws, but its pre-emptive authority should be restrained by the anti-commandeering principle. Congress cannot conscript state officials to execute federal congressional-election reforms, but instead must use federal officials to do so.

One year after New York v. U.S., Congress enacted the 1993 the Motor Voter law, imposing numerous obligations on states, including requiring that voter registration be allowed upon applying for a driver’s license and by mail, and designating state welfare agencies as voter-registration locations. Illinois, California and Michigan challenged the law, asserting that it violated New York’s anti-commandeering principle. All three states lost in the lower courts, but none of the decisions was reviewed by the Supreme Court.

The lower courts concluded that, under the Elections Clause, Congress may “make or alter” state laws for holding elections and thus, inevitably, may commandeer states when exercising this power. But the scope of the Supreme Court’s incipient anti-commandeering doctrine was not fully developed. It wasn’t until Printz in 1997 that the anti-commandeering doctrine’s centrality to federalism became clear.

That federalism limits federal power generally was confirmed by NFIB v. Sebelius (2012), when the court invalidated ObamaCare’s Medicaid expansion because it coerced states. NFIB confirmed that while Congress can incentivize states’ adoption of election laws such as those Mrs. Clinton proposes, it cannot constitutionally withhold large amounts of funds from states to coerce the laws’ adoption.

Democrats are seeking to overturn voting laws in the presidential battleground states of North Carolina, Ohio and Wisconsin. The Associated Press reported on June 4 that one of the lawyers involved in the effort is Marc Elias, who is also general counsel for Mrs. Clinton’s campaign.

Republicans have been muted in their response to Mrs. Clinton and the attempt to expand federal power over elections and undermine states’ anti-fraud election laws. Such reticence is a mistake. They would have the Constitution and legal precedent on their side in rebutting her proposals—as they would if they launched a fresh legal challenge to the Motor Voter law.

<em>Mr. Rivkin, a constitutional litigator, served in the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Ms. Foley is a constitutional law professor at Florida International University College of Law.

In The Wall Street Journal, David B. Rivkin Jr. and Elizabeth Price Foley write that Hillary Clinton’s plan to overrule state voter-ID laws is unconstitutional.
Add a comment...
Have him in circles
55 people
Jeremy Sellis's profile photo
Andrew Grossman's profile photo
Tina Zimmer's profile photo
Jay Tee's profile photo
Silvana Pereira's profile photo
Susan Hardwicke, Ph.D.'s profile photo
Joe Anguilano's profile photo
Lee Hwuk Kok's profile photo
Mike O'Horo's profile photo

David Rivkin

Shared publicly  - 
A Win for Congress and a Setback for ObamaCare


Sept. 10, 2015 7:46 p.m. ET

When the House of Representatives filed a lawsuit last year contesting President Obama’s implementation of ObamaCare, critics variously labeled it as “ridiculous,” “frivolous” and certain to be dismissed. Federal District Judge Rosemary Collyer apparently doesn’t agree. On Wednesday she ruled against the Obama administration, concluding that the House has standing to assert an injury to its institutional power, and that its lawsuit doesn’t involve—as the administration had asserted—a “political question” incapable of judicial resolution.

The House lawsuit involves two core allegations. First, the House contends that the executive branch has spent billions of dollars on ObamaCare’s “cost-sharing” subsidy, even though Congress hasn’t appropriated money for it. The House says the administration violated Article I, Section nine of the Constitution, which declares: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations Made by Law.”

Second, the House asserts that the administration has failed to faithfully execute ObamaCare’s employer mandate by issuing regulations lowering the percentage of employees who must be offered insurance and delaying the mandate’s effective date for two years.

The most specious but widespread objection to the lawsuit was that Congress, as an institution, is incapable of suffering an injury serious enough to establish “standing” to sue. Critics argued that, because the Supreme Court in Raines v. Byrd (1997) denied standing to a group of six congressmen who sued President Bill Clinton over his use of the line-item veto, there is no such thing as legislative standing.

But Raines never foreclosed legislative standing; it merely denied standing to six disgruntled members of Congress who had lost a political battle with their own colleagues. Raines didn’t involve a claim of institutional injury. The House lawsuit, by contrast, was authorized by a majority vote and does claim an institutional injury. In the words of Judge Collyer, the “plaintiff here is the House of Representatives, duly authorized to sue as an institution, not individual members as in Raines. . . . That important fact clearly distinguishes this case.”

Congress is not an institutional orphan, incapable of vindicating injury to its constitutional prerogatives. Indeed, just a few months ago, in Arizona State Legislature v. Arizona Independent Redistricting Commission, the Supreme Court recognized that the Arizona legislature had standing to assert its claim that a state executive commission had usurped its power to initiate redistricting. Standing existed because the Arizona legislature was “an institutional plaintiff asserting an institutional injury.”

Judge Collyer ruled that the House has standing to pursue its appropriations-related claims, but not its employer-mandate-related ones. Regarding the former, she recognized that the “genius of our Framers was to limit the Executive’s power” by reserving to Congress exclusive control over the federal purse. In her words, “Disregard for that reservation works a grievous harm on the House, which is deprived of its rightful and necessary place under our Constitution.”

The Obama administration contended that Congress could remedy its appropriations injury via “the elimination of funding” for ObamaCare. But as Judge Collyer noted, the administration was “apparently oblivious to the irony” of this argument, since a failure to appropriate money is, itself, an elimination of funding. She concluded, “Congress cannot fulfill its constitutional role if it specifically denies funding and the Executive simply finds money elsewhere without consequence.”

While Judge Collyer correctly permitted the appropriations claim to move forward, she incorrectly concluded that “the Employer-Mandate Theory is fundamentally a statutory argument” that merely asserts that the administration is “misinterpreting” ObamaCare. She was mistaken in asserting that other, private litigants are “free to sue” over such misinterpretation. Several private plaintiffs have already tried to litigate these misinterpretations, and federal courts in both the seventh and 11th circuits have held that they, too, lack standing.

When neither Congress nor private litigants have standing to challenge an executive’s unilateral rewriting of a statute, the executive possesses a dangerous, unchecked legislative power.

If the “genius of our Framers was to limit the Executive’s power,” as Judge Collyer wrote, by reserving to Congress exclusive control over the federal purse, the Founders were equally inspired in giving Congress exclusive control over legislation and obligating the president to “faithfully” execute such laws.

“The power of executing the laws,” the Supreme Court emphasized in Utility Air Regulatory Group v. EPA (2014), “does not include a power to revise clear statutory terms that turn out not to work in practice.” If a law has defects, fixing them lies solely within Congress’s legislative power, not with the executive branch. Disregard for this aspect of congressional power—not merely its appropriations power—also amounts to a “grievous harm on the House” sufficient for institutional standing.

As for the Obama administration’s Hail Mary claim that the House lawsuit involved a “political question” that shouldn’t be taken up by the judiciary, disputes between Congress and the executive have been decided by the courts since Marbury v. Madison in 1803. As Judge Collyer put it, “the mere fact that the House of Representatives is the plaintiff does not turn this suit into a non-justiciable ‘political’ dispute.” You could almost say the administration’s claim was ridiculous, frivolous—and, as of Wednesday, resoundingly dismissed.

Mr. Rivkin is a constitutional litigator who has served in the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Ms. Foley is a constitutional law professor at Florida International University College of Law.

In The Wall Street Journal, David B. Rivkin Jr. and Elizabeth Price Foley write about a win for Congress and a setback for ObamaCare.
Add a comment...

David Rivkin

Shared publicly  - 
Ignore Trump — the issue of birthright citizenship has been settled

By DAVID RIVKIN, JOHN YOO, Sept. 6 2015 in the Los Angeles Times

Donald Trump's call to end birthright citizenship has roiled the Republican presidential primary. Jeb Bush, John Kasich and Marco Rubio embrace the traditional view that the Constitution bestows citizenship on anyone born on U.S. territory. Ben Carson and Rand Paul agree with Trump that Congress could dismantle birthright citizenship by itself. Meanwhile, Ted Cruz acknowledges birthright citizenship but seeks a constitutional amendment to abolish it.

Conservatives should reject Trump's nativist siren song and reaffirm the legal and policy vitality of one of the Republican Party's greatest achievements: the 14th Amendment. Under its text, structure and history, anyone born on American territory, no matter their national origin, ethnicity or station in life, is a U.S. citizen.

Although the original Constitution required citizenship for federal office, it never defined it. The 14th Amendment, however, provides that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." Congress did not draft this language to alter the concept of citizenship but to affirm American practice dating from the origins of our republic.

With the exception of a few years before the Civil War, the United States followed the British rule of jus solis (citizenship defined by birthplace) rather than the rule of jus sanguinis (citizenship defined by that of parents), which still prevails in much of continental Europe. As the 18th century English jurist William Blackstone explained: "The children of aliens, born here in England, are generally speaking, natural-born subjects, and entitled to all the privileges of such."

After the Civil War, congressional Republicans drafted the 14th Amendment to correct one of slavery's grave distortions of our law. In Dred Scott vs. Sanford (1857), Chief Justice Roger Taney found that slaves, even though born in the United States, could never become citizens. The 14th Amendment directly overruled Dred Scott by declaring that anyone born in the U.S., irrespective of race, is a citizen. It also removed from the majoritarian political process the ability to revoke the citizenship of children born to members of disfavored ethnic, religious or political minorities.

The only way to avoid this straightforward understanding is to misread "subject to the jurisdiction thereof" as an exception that swallows the jus solis rule. Some scholars have argued that this language must refer to aliens, who owe allegiance to another nation and not the United States. We disagree.

Conservatives should reject Trump's nativist siren song and reaffirm the legal and policy vitality of one of the Republican Party's greatest achievements: the 14th Amendment.

Proponents of "allegiance" citizenship do not appreciate the consequences of opening this Pandora's box. Among other problems, such a standard could spell trouble for millions of dual citizens, who certainly owe allegiance to more than one country. This is not an entirely speculative concern; during World Wars I and II, public sentiment ran strongly against German Americans or Japanese Americans.

More generally, the whole notion of national loyalty is open-ended, requires person specific determinations and would put the government in the business of reviewing the ancestry of its citizens. Washington and the states would have to pour even more resources into already dysfunctional immigration and security bureaucracies that cannot even control the borders. Reading allegiance into the 14th Amendment would largely defeat the intent of its drafters, who wanted to prevent politicians from denying citizenship to those they considered insufficiently American.

As a matter of constitutional interpretation, the 14th Amendment's reference to jurisdiction means only that the children fall under American law at birth. Almost everyone in the United States, even aliens, come within our jurisdiction; otherwise, they could violate the law with impunity. "Subject to the jurisdiction thereof" refers to discrete categories of people that American law does not govern, such as diplomats and enemy soldiers occupying U.S. territory during war. International law grants both diplomats and enemy soldiers protected status, when present on the soil of another state, from the application of that state's laws.

At the time of the 14th Amendment's ratification, one obvious group not subject to U.S. jurisdiction: Native Americans living on tribal lands; the tribes exercised considerable self-governance. In the late 19th century, the federal government began to regulate Indian life, substantially diminishing tribal sovereignty and in 1924 extended birth citizenship to them as well.

The 14th Amendment's drafting history supports our reading. The Civil Rights Act of 1866, which inspired the amendment, guaranteed birthright citizenship to anyone born in the U.S. except those "subject to any foreign power" and "Indians not taxed." If the 14th Amendment's drafters had wanted "jurisdiction" to exclude children of aliens, they easily could have repeated the "foreign power" line.

Significantly, congressional critics of the amendment recognized the broad sweep of the birthright citizenship language. Sen. Edgar Cowan of Pennsylvania, a leading opponent, asked: "Is the child of the Chinese immigrant in California a citizen? Is the child born of a Gypsy born in Pennsylvania a citizen?" Sen. John Conness of California responded yes, and later lost his seat because of anti-Chinese sentiment in his state. The original public meaning of the 14th Amendment, which conservatives properly believe to be the lodestar of constitutional interpretation, affirms birthright citizenship.

Our position, finally, works no great legal revolution. The Supreme Court has consistently read the 14th Amendment to grant birthright citizenship. United States vs. Wong Kim Ark (1898) upheld the American citizenship of a child born in San Francisco to Chinese parents, who themselves could never naturalize under the Chinese Exclusion Acts. The court held that "the 14th Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and protection of the country, including all children here born of resident aliens." It also explicitly rejected the argument that aliens, because they owed allegiance to a foreign nation, were not within the jurisdiction of the United States.

Critics of birthright citizenship respond that the Wong Kim Ark decision does not apply to the children of undocumented immigrants because Wong's parents lived here legally. But in 1898, federal law did not distinguish between "legal aliens" and "illegal aliens," so the court's opinion could not turn on the parents' legal status.

In Plyler vs. Doe (1982), moreover, the Supreme Court held 5 to 4 that the equal protection clause required Texas to provide public schooling to children of unauthorized immigrants. All nine justices agreed that "no plausible distinction with respect to the 14th Amendment 'jurisdiction' can be drawn between resident aliens whose entry into the United States was lawful and resident aliens whose entry was unlawful."

The 14th Amendment settled the question of birthright citizenship once and for all. Conservatives should not be the ones seeking a new law, or even a constitutional amendment to reverse centuries of American tradition.

David Rivkin is a constitutional litigator and served in the Reagan and George H.W. Bush administrations. John Yoo is a professor of law at UC Berkeley and a visiting scholar at the American Enterprise Institute. He served in the George W. Bush administration.

Donald Trump's call to end birthright citizenship has roiled the Republican presidential primary. Jeb Bush , John Kasich and Marco Rubio embrace the traditional view that the Constitution bestows citizenship on anyone born on U.S. territory. Ben Carson and Rand Paul agree with Trump that Congress could dismantle birthright citizenship by itself. Meanwhile, Ted Cruz acknowledges birthright citizenship but seeks a constitutional amendm...
Add a comment...

David Rivkin

Shared publicly  - 
The Lawless Underpinnings of the Iran Nuclear Deal


July 26, 2015 6:32 p.m. ET
The Iranian nuclear agreement announced on July 14 is unconstitutional, violates international law and features commitments that President Obama could not lawfully make. However, because of the way the deal was pushed through, the states may be able to derail it by enacting their own Iran sanctions legislation.

President Obama executed the nuclear deal as an executive agreement, not as a treaty. While presidents have used executive agreements to arrange less-important or temporary matters, significant international obligations have always been established through treaties, which require Senate consent by a two-thirds majority.

The Constitution’s division of the treaty-making power between the president and Senate ensured that all major U.S. international undertakings enjoyed broad domestic support. It also enabled the states to make their voices heard through senators when considering treaties—which are constitutionally the “supreme law of the land” and pre-empt state laws.

The Obama administration had help in its end-run around the Constitution. Instead of insisting on compliance with the Senate’s treaty-making prerogatives, Congress enacted the Iran Nuclear Agreement Act of 2015. Known as Corker-Cardin, it surrenders on the constitutional requirement that the president obtain a Senate supermajority to go forward with a major international agreement. Instead, the act effectively requires a veto-proof majority in both houses of Congress to block elements of the Iran deal related to U.S. sanctions relief. The act doesn’t require congressional approval for the agreement as a whole.

Last week the U.N. Security Council endorsed the Iran deal. The resolution, adopted under Chapter VII of the U.N. Charter, legally binds all member states, including the U.S. Given the possibility that Congress could summon a veto-proof majority to block the president’s ability to effect sanctions relief, the administration might be unable to comply with the very international obligations it has created. This is beyond reckless.

On March 11 Secretary of State John Kerry defended the administration’s decision not to take the treaty route with Iran, saying it had “been clear from the beginning we’re not negotiating a legally binding plan.” The Security Council gambit has enabled the administration, without Senate consent, to bind the U.S. under international law.

The U.N. Charter resolution has trapped the U.S. into a position where it can renounce its obligations only at the cost of being branded an international lawbreaker. The president has thus handed the legal high ground to Tehran and made undoing the deal by his successor much more difficult and costly.

Yet the nuclear agreement’s legitimacy in international law is far from clear. The Convention on the Prevention and Punishment of the Crime of Genocide imposes an affirmative obligation on all convention parties to prevent genocide and threats of genocide. Iran remains publicly committed to Israel’s elimination, an unequivocal threat of genocide in violation of the Convention.

Since nuclear weapons delivered by ballistic missiles are the most likely means by which Iran could implement its genocidal policy, an agreement that calls for lifting the Security Council resolutions banning the sale of ballistic missiles to Iran after eight years—as this nuclear deal does—also seems to contravene the genocide convention.

A further legal complication: Even if Congress doesn’t vote to bar President Obama from lifting sanctions on Iran, the president still wouldn’t be able to deliver fully on the deal’s unprecedented sanctions-lifting commitments. They were promised regardless of any future Iranian aggression in the region, sponsorship of terrorist acts or other misconduct.

Some of the U.S. statutes allow the president to lift certain sanctions on Iran. But many of the most important sanctions—including sanctions against Iran’s central bank—cannot be waived unless the president certifies that Iran has stopped its ballistic-missile program, ceased money-laundering and no longer sponsors international terrorism. He certainly can’t do that now, and nothing in the deal forces Iran to take either step. The Security Council’s blessing of the nuclear agreement has no bearing on these U.S. sanctions.

The administration faces another serious problem because the deal requires the removal of state and local Iran-related sanctions. That would have been all right if Mr. Obama had pursued a treaty with Iran, which would have bound the states, but his executive-agreement approach cannot pre-empt the authority of the states.

That leaves the states free to impose their own Iran-related sanctions, as they have done in the past against South Africa and Burma. The Constitution’s Commerce Clause prevents states from imposing sanctions as broadly as Congress can. Yet states can establish sanctions regimes—like banning state-controlled pension funds from investing in companies doing business with Iran—powerful enough to set off a legal clash over American domestic law and the country’s international obligations. The fallout could prompt the deal to unravel.

For now, though, we are left with another reminder from the administration that brought ObamaCare: Constitutional shortcuts almost invariably lead to bad policy outcomes.

Messrs. Rivkin and Casey are constitutional lawyers at Baker Hostetler LLP and served in the Justice Department under Presidents Reagan and George H.W. Bush. Mr. Rivkin is also a senior fellow at the Foundation for the Defense of Democracies.

Add a comment...

David Rivkin

Shared publicly  - 
Taking the Iran Deal Disaster Seriously

By David B. Rivkin, Jr., and Lee A. Casey; July 21, 2015, in The National Interest

The best approach to Iran in the wake of President Obama’s deal is to recognize the complex nature of the problem, and the absolute need for a well-considered and comprehensive approach. The agreement cannot and should not be simply repudiated on the next president’s first day in office, as some Republican presidential contenders have suggested. The agreement is terrible, but once concluded, the national interest requires that it be undone only with care, patience, and masterful diplomacy—an approach championed by Gov. Jeb Bush and Senator Lindsey Graham. Indeed, to suggest otherwise, is to fail to appreciate the full extent of the damage done by the deal and the difficult foreign-policy legacy President Obama is leaving for his successor.

First and foremost, simply abrogating the deal—which already has been enshrined in a Chapter VII UN Security Council Resolution binding on the United States and all members of the United Nations—would actually put the United States in violation of its international obligations and will hand tremendous strategic benefits to Tehran. This may be inevitable, since Russia and China will certainly take advantage of any American action against Iran to score diplomatic and strategic points against us. But, we do not have to make it easy for them, and we should not.

In addition, whatever action the new president takes on January 20, 2017, Iran will remain free of the vast majority of the sanctions that brought it to the bargaining table in the first place. While the next president will be able to vitiate promptly President Obama’s waivers of the existing statutory sanctions—some of which are certain to go beyond his lawful waiver authority—thereby making the existing domestic statutory sanctions available, it would still make sense to consult with Congress on whether the sanctions regime needs adjustment in light of new circumstances.

Although President Obama has ignored Congress, or affirmatively sought to curtail its constitutional prerogatives, the next President should work with Congress and must seek to build a bipartisan consensus on how to meet the Iranian challenge. As Supreme Court Justice Robert Jackson wrote in the landmark case of Youngstown Sheet & Tube Co. v. Sawyer (1952), a president acts at the height of his constitutional authority when working with, rather than against, Congress.

Second, even if international sanctions can somehow successfully be “snapped back,” as the Obama administration claims, it is far from clear whether our allies will follow—even after the case is made to them. They most certainly will not blindly follow some inauguration day stunt and put themselves in violation of their international obligations too. While the United States can, of course, lawfully proceed with unilateral sanctions, this would not be an optimum approach. Nor will threatening at the outset to sanction the banks, other businesses and citizens of third countries, including our key allies, for continuing to deal with Iran help the United States convince its allies to reinstitute these programs. Unilateral U.S. action should be our last, not first, response.

Moreover, it has taken nearly forty years of various sanctions regimes, and at least a decade of intense and nearly complete sanctions, to give the United States and its allies the leverage they now have. That leverage cannot and will not be restored overnight. As a consequence, if the Iran deal is renounced by the United States on the new president’s first day in office, the certain result will be an Iran free of both sanctions and whatever obligations it has undertaken, and the United States isolated and humiliated. Everyone can agree that this is not the way to serve the country’s interests, or to begin a successful presidency.

In addition, simply renouncing the deal and imposing sanctions cannot end Iran’s regional and global ambitions—nuclear and otherwise. Iran’s nuclear program—for obvious reasons—has been the most important issue in that country’s relations with the West, but it is very far from the only issue. Iran remains one of the most prolific state-sponsors of terrorism in the world. It has and will certainly continue to seek hegemony in the Middle East, to deliberately destabilize its neighbors and other states in the region, and to promote ballistic missile proliferation and human-rights abuses throughout the Near and Middle East and beyond.

Only a comprehensive strategy, led by the United States and supported by our major allies, can neutralize Iran’s malign activities, and this will take time. In particular, that program must take into account the views and interests of U.S. allies in the region, including Israel and those Arab States that understand and fear Iran’s ambitions and capabilities.

Finally, a simple renunciation of the Iran deal will involve the inevitable risk of a military confrontation with Iran, perhaps a confrontation in which the United States would be unable to count on many allies beyond Israel. Like potential international opprobrium, this may be inevitable. However, no responsible president would set foot on that path without first having a sound national-security team in place and reviewing the military options and the nation’s capabilities at that time. A president who has pledged simply to abrogate the Iran deal on his first day in office, and who then decided to behave responsibly and make these assessments, will be seen as having “backed down” even before his first full workday. There simply is no reason to do this. Such an action certainly cannot be justified as a matter of sound statecraft and is nothing more than an opportunity for some pre-primary chest thumping.

President Obama has negotiated a bad deal, and he very likely will impose this deal on the country. The next president will have to clean up the mess, but must do so through a considered and measured strategy that actually has some real chance of success.

David B. Rivkin, Jr. and Lee A. Casey are constitutional lawyers at Baker Hostetler, LLP and served in the Justice Department under Presidents Reagan and George H.W. Bush. Rivkin is also a Senior Fellow at the Foundation for The Defense of Democracies.

"Simply renouncing the deal and imposing sanctions cannot end Iran’s regional and global ambitions—nuclear and otherwise."
Add a comment...

David Rivkin

Shared publicly  - 
Bypassing separation of powers to "fix" sloppy laws

In King v. Burwell, the Supreme Court surprised many Court watchers, ruling six to three that the Affordable Care Act (ACA) permits individuals who buy health insurance on the federal exchange to receive taxpayer subsidies. The decision represents a decisive victory for ACA supporters, and an equally decisive loss for the rule of law.  With King, the Supreme Court has signaled (again) that it is willing to “save” important laws by rewriting them, thus behaving as an all-powerful, unelected, politically insulated, unconstitutional Council of Revision.

King is the second time the Court has rescued the ACA. The first time, NFIB v. Sebelius (2012), involved a frontal assault on the constitutionality of the Act’s individual mandate and its mandatory Medicaid expansion. The five-Justice NFIB majority, led by Chief Justice John Roberts, saved the individual mandate by rewriting the word “penalty” to mean “tax,” and disregarding extensive legislative history indicating that Congress had intended to use its commerce power, not its taxing power.

The NFIB majority also ruled that the ACA’s mandatory Medicaid expansion violated federalism by unconstitutionally coercing states.  Because the Medicaid expansion was integral to making the ACA “work,” this constitutional infirmity should have rendered the entire ACA unconstitutional pursuant to a severability analysis.  But as with the individual mandate, the NFIB majority opted instead to save the ACA, transforming the Medicaid expansion from mandatory to “optional.”  In the words of the four NFIB dissenters, the majority “save[d] a statute Congress did not write.”

To paraphrase Yogi Berra, King is déjà vu all over again.  Once again, Chief Justice Roberts has penned a majority opinion rewriting the ACA, but with one important difference: This time, the Court’s rewrite does not even further the policy of “saving” the ACA.  If the Court had ruled the other way, the ACA, while not performing well, would have remained largely intact, albeit in a less draconian form that was more respectful of states and individual liberty.

The Obama administration convinced the King majority that the loss of subsidies would trigger a “death spiral,” whereby younger and healthier individuals leave the market, causing less healthy individuals to pay ever-higher premiums.  But many – if not most – young, healthy individuals have already shunned the ACA’s expensive, high-deductible coverage, opting instead to pay the less expensive individual mandate “tax.” These decisions were made, despite the availability of subsidies. Thus, while losing taxpayer subsidies obviously makes health insurance more expensive, it does not, by itself, induce an underwriting death spiral. Instead, it would be more accurate to say that it forces individuals to pay the full freight of the benefits-rich insurance mandated by the ACA.

Indeed, the majority’s desire to save the ACA from these perceived policy effects blinded it to the countervailing effects of ruling in favor of the plaintiffs.  For example, while a loss of subsidies would have caused some individuals to drop insurance, most would not consequently face the individual mandate “tax,” since it does not apply when premiums exceed eight percent of income. For Justice Anthony Kennedy (who dissented in NFIB) in particular, one would think such a positive effect on individual liberty – escaping the individual mandate – would have carried some weight.

Employers’ liberty would also have been enhanced if the King majority had ruled in favor of the plaintiffs. In the thirty-four states without state-run exchanges, employers would no longer have been subjected to the employer mandate tax, since it is triggered only when an eligible employee receives a subsidy.  As Michael Cannon of the Cato Institute demonstrated, ruling against the Obama administration would have freed an estimated eight million individuals and 250,000 employers from paying onerous taxes.

Individual liberty aside, the King Court’s disrespect of states is also surprising since Justice Kennedy – normally the Court’s most strident federalist – joined the majority.  The King majority appears to have invoked some odd form of the “clear statement rule” to bolster its conclusion, citing the Court’s 2014 decision in Utility Air Regulatory Group v. EPA and stating, “Whether [tax] credits are available on Federal Exchanges is thus a question of deep ‘economic and political significance’ that is central to this statutory scheme; had Congress wished to assign that question to an agency, it surely would have done so expressly.”

But as we have written before, the clear statement rule is a rule designed to protect federalism, not individuals. In every single prior instance in which the Court has invoked the clear statement rule, it has been to prevent Congress from using its enumerated powers in a manner that harms the states as states. The clear statement rule is utterly inapplicable, however, when Congress uses its power directly on citizens, as is the case with the ACA tax subsidy.

Moreover, the King majority’s decision denies states a meaningful choice regarding whether to operate a state exchange. Refusing to operate a state exchange empowered states to free many of their citizens from the Act’s onerous mandates and provided a means to voice their strong political opposition to the ACA. While the choice to operate a state exchange was a difficult one, it was a still a choice. The King majority’s invocation of the clear statement rule denies states this basic choice, using the rule not to respect federalism, but to impose a one-size-fits-all approach.  By denying states a choice, the King Court has thwarted the liberty-enhancing function of federalism.

Beyond these various policy implications, however, the King decision portends frightening implications for the rule of law.  As the King dissenters ominously warned, “Words no longer have meaning if an Exchange that is not established by a State is ‘established by the State.’” By ignoring what the ACA actually says, in favor of what the King majority believes the statute ought to have said, or what it thinks Congress meant to say, the Court upset the entire constitutional balance. Yet ironically, the King majority invoked Marbury v. Madison and declared that a court’s proper role was to “to say what the law is.” While this is a correct recitation of the proper role of the judiciary in a constitutional republic, it is sadly not the role the King Court played.

Courts are emphatically not in the law-writing business. The King majority confessed that “the Act does not reflect the type of care and deliberation that one might expect of such significant legislation” and that “the context and structure of the Act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.”

But by departing from the “natural reading” of a law that is patently poorly drafted, the Court has short-circuited the entire political process.  When judges take it upon themselves to “fix” broken legislation like the ACA, they diminish political accountability by encouraging Congress to be sloppy when drafting legislation. And when it comes to the quality of legislating, judicially drafted “legislation” is always worse than even hastily drafted congressional statutes.

Moreover, when faced with a poorly drafted law, the executive branch has every incentive to amend laws unilaterally, rather than working with Congress to amend them.  It may be expedient for presidents to issue regulations pretending legislation says whatever the president wants it to say, but such de facto executive-lawmaking inherently lacks the deliberation and compromise that permeates the legislative process.

When the Supreme Court conflates law interpretation with lawmaking – as it has done in King – it diminishes courts’ independence, undermines their legitimacy, and destroys the ability to have judicial decisions heeded by the two political branches. According to Gallup, trust in government is at its lowest since the Nixon years, with only twenty-eight percent of Americans having a “great deal” or “fair amount” of trust in the legislative branch, and only forty-three percent in the executive branch. The judicial branch still fares better, at sixty-one percent confidence, but that, too, is historically low.  By rewriting the ACA’s plain language simply because the stakes were high, the Court can expect a further erosion of the confidence of the American people. Indeed, one of the political left’s defining mantras is that “law is politics.” The decision unfortunately both illustrates and amplifies this belief.

Now that the Court has fixed the ACA (again), the political branches can relax. There is no need to start working together to amend the law and engage in the back-and-forth art of political compromise. While this may be good news for the president and members of Congress who were gearing up for an intense round of political chicken, it is horrible news for the American people and the Constitution.

When a law is hastily enacted and consequently has flaws, it is supposed to be amended by Congress.  Judges are not supposed to engage in sophistic contortions to find “ambiguity” in their quest to justify rewriting laws. By bypassing the political process this way, the Supreme Court in King has bypassed the Constitution itself.

<em>David B. Rivkin, Jr. is a constitutional litigator at BakerHostetler, LLP, who served in the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Elizabeth Price Foley is Of Counsel at BakerHostetler and a professor of constitutional law at Florida International University College of Law.</em>

David B. Rivkin, Jr. is a constitutional litigator at BakerHostetler, LLP, who served in the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Elizabeth Price Foley is Of Counsel at BakerHostetler and a professor of constitutional law at Fl
Add a comment...

David Rivkin

Shared publicly  - 
Does EPA’s Clean Power Plan Proposal Violate the States’ Sovereign Rights?

By David B. Rivkin, Jr., Mark DeLaquil, Andrew Grossman, June 15 2015

Note from the Editor: 

This article discusses the Environmental Protection Agency’s Clean Power Plan under the Clean Air Act.  As always, The Federalist Society takes no position on particular legal or public policy initiatives.  Any expressions of opinion are those of the author.  The Federalist Society seeks to foster further discussion and debate about the issues involved.  To this end, we offer links to other perspectives on the subject, and we invite responses from our audience.  To join the debate, please e-mail us at

Congress’s statement of policy in the Clean Air Act that “air pollution control at its source is the primary responsibility of States and local governments” is not merely hortatory.1 It reflects both the practical reality of and constitutional limitations on federal regulation of air quality. The practical reality is that the federal government relies on the states both for the detailed policymaking necessary to achieve national goals on a state-by-state basis and for the implementation and enforcement of pollution-control programs with respect to particular sources. But, no matter its reliance, the federal government is forbidden from commandeering the states or their officials to carry out federal law, from coercing them to do so, and from invading the states’ own powers. The Clean Air Act resolves this tension through a system of “cooperative federalism” that gives states the opportunity to regulate in accordance with federal goals and provides for direct federal regulation as a backstop should they fail to do so. This accommodation allows the federal government to enlist the states’ assistance in achieving federal goals without exceeding its authority under the Constitution.

The Environmental Protection Agency’s “Clean Power Plan” (the “Proposed Rule”) abandons that careful accommodation and, in so doing, violates the Tenth Amendment and principles of federalism. The Proposed Rule requires each state to submit a plan to cut carbon-dioxide emissions by a nationwide average of 30 percent by 2030. Although ostensibly directed at emissions from fossil-fuel-fired power plants, the Proposed Rule sets targets for individual states that incorporate “beyond-the-fenceline” cuts to be achieved by increasing reliance on natural gas generation, adopting zero-emissions generation such as wind and solar, and reducing electricity demand. The goal is to phase out coal-fired power plants, which currently account for nearly 40 percent of electricity generation.

In the service of achieving EPA’s policy objectives, the Proposed Rule forces each state to overhaul its energy market. Just to keep the lights on, states will have to dramatically change their energy mix, to account for the loss of coal-fired generating capacity, and to rework their regulation of energy producers, power dispatch, and transmission. This will require changes to states’ legal and regulatory structures, as well as numerous regulatory actions directed at their own citizens—energy producers and consumers alike. In order to accomplish these objectives, even a state that declines to implement the Clean Power Plan will have to employ EPA’s “building blocks” to prevent the Plan from wrecking the state’s energy economy. And states that refuse to accede to EPA’s demand to implement this new program face the specter of financial sanctions. In short, EPA’s Proposed Rule forces the states to act to carry out federal policy. It is a gun to the head of the states: “Your sovereignty or your economy” is EPA’s ultimate demand.

But the federal government may not “require[] the States to enact or administer a federal regulatory program.” Printz v. United States, 521 U.S. 898, 926 (1997). Nor may it “command state or local officials to assist in the implementation of federal law.” Id. at 927. Nor may it employ penalties and threats to “coerce[] a State to adopt a federal regulatory system as its own.” NFIB v. Sebelius, 132 S. Ct. 2566, 2602 (2012) (Roberts, C.J.).

Because it violates those cardinal rules, the Proposed Rule’s directives to the states “are, in the words of The Federalist, ‘merely acts of usurpation’ which ‘deserve to be treated as such.’” Id. at 2592 (quotation marks omitted). The Proposed Rule should be withdrawn. If the rule is finalized, and if it is held to be within EPA’s statutory authority, the courts would be constrained to reject it as exceeding federal power under the Constitution.

I. Background

A. The Clean Air Act and Section 111(d)

The Clean Air Act “made the States and the Federal Government partners in the struggle against air pollution.”2 As to stationary sources of emissions, the Act contains several programs under which EPA sets standards, such as for the concentration of certain pollutants in ambient air, that are then implemented and administered by the states through State Implementation Plans (“SIPs”) prepared by the states.3 These implementation plans address, among other things, enforceable emission limitations for sources, monitoring systems, enforcement programs, adequacy of personnel and funding available to implement the plan, and consultation and participation by local political subdivisions affected by the plan.4

EPA, in turn, is required to approve state implementation plans that satisfy the requirements of the Act and applicable regulations, including standards set by EPA.5 Only if a state fails to submit an implementation plan, or submits one that is deficient, may EPA directly regulate sources itself through promulgation of a Federal Implementation Plan (“FIP”).

In this system, EPA is “charged by the Act with the responsibility for setting [national standards],” but “it is relegated by the Act to a secondary role in the process of determining and enforcing the specific, source-by-source emission limitations which are necessary if the national standards it has set are to be met” and “may devise and promulgate a specific plan of its own only if a State fails to submit an implementation plan which satisfies those standards.”6

Section 111(d) implements this cooperative approach for setting “standards of performance” for certain existing stationary sources of air pollutants.7 It provides for EPA to direct the states to submit plans that “establish[] standards of performance for any existing source for any air pollutant” which would be subject to an EPA-prescribed standard if emitted by a new source and that “provide[] for the implementation and enforcement of such standards of performance.”8 A “standard of performance” is defined as “a standard for emissions of air pollutants which reflects the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction and any nonair quality health and environmental impact and energy requirements) [EPA] determines has been adequately demonstrated.”9 State plans, however, may also “take into consideration, among other factors, the remaining useful life of the existing source to which such standard applies.”10 Only in the event that a state “fails to submit a satisfactory plan,” or fails “to enforce the provisions of such plan,” may EPA step in and regulate itself by setting and enforcing standards.11

B. EPA’s Proposed Rule

EPA’s Proposed Rule relies on the agency’s Section 111(d) authority to set standards for existing fossil-fuel-fired power plants.12 It aims to reduce carbon dioxide emissions from the power sector by 30 percent by 2030, relative to 2005 levels, by requiring states to overhaul their “production, distribution and use of electricity.”13 States must submit state plans to achieve “emission rate-based CO2 goals” that EPA has specified for each state.14 These targets are based on projected emissions reductions that EPA believes can be achieved through the combination of four “building blocks”:

1.        Reducing the carbon intensity of generation at individual affected [power plants] through heat rate improvements.

2.        Reducing emissions from the most carbon-intensive affected [power plants] in the amount that results from substituting generation at those [power plants] with generation from less carbon-intensive affected [power plants]….

3.        Reducing emissions from affected [power plants] in the amount that results from substituting generation at those [power plants] with expanded low- or zero-carbon generation.

4.        Reducing emissions from affected [power plants] in the amount that results from the use of demand-side energy efficiency that reduces the amount of generation required.15

In plain English, EPA’s building blocks anticipate that, to meet EPA’s targets, states will have to: (1) require plants to make changes to increase their efficiency in converting fuel into energy; (2) replace coal-fired generation capacity with increased use of natural gas; (3) replace fossil-fuel-fired generation capacity with nuclear and renewable sources, such as wind and solar; and (4) mandate more efficient use of energy by consumers.16 These “building blocks,” in one combination or another, are effectively the only ways that a state could reorganize its electric generating capacity to achieve the targets set by EPA.

EPA describes this as a “plant to plug” approach that comprehensively addresses all aspects of energy production and consumption based on “the interconnected nature of the power sector.”17 In this respect, unlike other emissions-control programs, EPA’s Proposed Rule relies extensively on “beyond-the-fenceline” measures—that is, regulation of things other than the emissions of the sources it actually purports to regulate. This describes all but the first of EPA’s building blocks.

The Proposed Rule requires states to submit implementation plans, including all necessary statutory and regulatory changes, by June 30, 2016, absent special circumstances.18 Any state that does not submit an implementation plan consistent with the rule’s requirements will be subject to a federal plan devised by EPA that regulates fossil fuel-fired power plants in the state.19

C. The Proposed Rule Requires States To Overhaul Their Energy Sectors

Because EPA used “the combination of all four building blocks” to set state emissions targets,20 those targets cannot be achieved only by employing controls at the sources ostensibly subject to Section 111(d) regulation: fossil-fuel-fired power plants.21 Accordingly, compliance with the Proposed Rule will require states to take “beyond-the-fenceline” measures that involve fundamentally restructuring their regulation and use of electricity.22

First, states will have to eke out whatever efficiency gains can be accomplished in a cost-effective manner from their existing coal-fired generation fleet. While this step may be within the existing statutory authority of state environmental regulators, feasible improvements may be few and far between, due to upgrades already implemented to comply with other regulations.23 In general, states will be able to achieve improvements of only a few percentage points in emissions reduction, at most24—compared to the 30 percent, on average, that is required in total. Some upgrades could potentially trigger new source review obligations, making them economically infeasible.25

Second, states will have to revise the statutory and regulatory systems that govern dispatch among power plants to place coal-fired plants—which typically supply baseload power—at the rear of the pack.26 That change, in turn, will require additional state actions to ensure that customers in certain areas relying on affected plants are not left without power or forced to bear unreasonable costs.27 It will also require substantial changes to utility regulation as systems that put cost and reliability first in making dispatch determinations are reworked to consider other factors.28 And in states where dispatch is controlled by federally regulated multi-state regional transmission organizations, other regulatory or inter-governmental actions will be required.29

Third, states will have to develop or incentivize zero-emissions generation, which will require state authorizing legislation and expenditures.30 Developing sources such as wind and solar will inevitably implicate other environmental issues, such as endangered species protection, that states must also address, at considerable burden and expense.31 They must also address how increased renewable capacity, which may fluctuate, fits into the transmission system and dispatch, as well as how such capacity will be compensated.32 In states where it is not feasible to add renewable capacity, or that do not receive credit for such capacity that is exported, other measures will be required. For example, West Virginia anticipates that it “would be forced to participate in some form of interstate program that would include the states in which West Virginia-produced wind energy is sold. Such a program would require new statutory authority, significant groundwork in determining which states would participate, negotiations with those states, resources to develop interstate agreements to create an entity that would administer the interstate program, and time to create parallel regulations in each state to implement a program that would allow West Virginia to receive credit for the zero carbon emissions associated with current and future wind resources.”33

Fourth, states will have to enact programs to reduce electricity demand in an enforceable fashion, requiring legislative and regulatory action.34 States with deregulated electricity markets will face particular challenges, because power plants may be independent of power distribution companies.35 This may also require, in some instances, regulation of consumers of electricity, which will be a new mission for state environmental and utility regulators.36

Finally, to achieve EPA’s targets, states will inevitably have to require the idling or retirement of some coal-fired power plants and deal with the consequences of doing so.37 This includes maintaining electric reliability for all customers, ensuring that plant operators are appropriately compensated, and ensuring that the financial impact on electricity consumers is acceptable.38

In sum, the Proposed Rule, if adopted as proposed or in a substantially similar form, will require states to overhaul their regulation of electricity and public utilities and to take numerous regulatory and other actions to comply with and accommodate the Proposed Rule while maintaining electric affordability and reliability. And that will be the case regardless of whether states take direct action and adopt “state plans” or whether they decline to promulgate a state plan and become subject to a federal plan—which, even if it applied only to coal-fired plants, would presumably require their retirement—due to states’ pervasive regulation of the power sector, transmission, and utilities. For no state is doing nothing an option.

II. The Proposed Rule Commandeers the States in

Violation of the Tenth Amendment

The Tenth Amendment provides: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”39 It “states but a truism that all is retained which has not been surrendered.”40 But part of what has been retained is the states’ sovereign authority.41 Thus, “if a power is an attribute of state sovereignty reserved by the Tenth Amendment, it is necessarily a power the Constitution has not conferred on Congress.”42 Among the powers denied to the federal government is the power to “use the States as implements of regulation”—in other words, to commandeer them to carry out federal law.43 The Proposed Rule plainly does so and is therefore ultra vires.

While the Commerce Clause “authorizes Congress to regulate interstate commerce directly[,] it does not authorize Congress to regulate state governments’ regulation of interstate commerce.”44 Thus, in New York v. United States, the Supreme Court struck down a provision of the Low–Level Radioactive Waste Policy Amendments Act that required states either to legislate to provide for the disposal of radioactive waste according to the statute or to take title to such waste and assume responsibility for its storage and disposal.45

New York holds that such commandeering is incompatible with the clear lines of accountability embodied in the Constitution’s vertical separation of powers. The federal government may, the Court explained, encourage state action by “‘attach[ing] conditions on the receipt of federal funds.’”46 And it may “offer States the choice of regulating [an] activity according to federal standards or having state law pre-empted by federal regulation.”47 In both of these instances, the state is merely “encourage[ed]…to conform to federal policy choices,” and “the residents of the State retain the ultimate decision as to whether or not the State will comply” by holding state officials accountable for making such choices.48 But that accountability is undermined “where the Federal Government directs the States to regulate, [because] it may be state officials who will bear the brunt of public disapproval, while the federal officials who devised the regulatory program may remain insulated from the electoral ramifications of their decision.”49 In enacting the “take title” provision, the Court concluded, “Congress has crossed the line distinguishing encouragement from coercion.”50

It made no difference that the provision allowed “latitude” to the States in choosing how to carry out the federal directive. While a state could choose to contract with a regional disposal compact, build a disposal site itself, etc., each of these options “underscore[d] the critical alternative a State lacks: A State may not decline to administer the federal program. No matter which path the State chooses, it must follow the direction of Congress.”51 Also irrelevant was the importance of the federal interest at stake, as well as the states’ participation in the formulation of federal policy.52 After all, “State governments are neither regional offices nor administrative agencies of the Federal Government,” but sovereigns in their own right.53

Printz v. United States reaffirmed and extended these principles to the commandeering of state officials.54 At issue was a federal statute that, although it did not command states to regulate, directed certain state law enforcement officers to conduct background checks on gun buyers and perform related tasks.55 In other words, the statute directed state officials “to participate…in the administration of a federally enacted regulatory scheme.”56 And that was a step too far: “Preservation of the States as independent and autonomous political entities” is unacceptably “undermined…by ‘reducing them to puppets of a ventriloquist Congress.’”57 Thus, the states may not be “dragooned…into administering federal law.”58

Yet that is precisely what the Proposed Rule would do. While the Proposed Rule ostensibly applies to the industrial category of fossil-fuel-fired plants, EPA makes no pretense that compliance can be achieved through the application of a system of emission reduction, such as pollution control technology, at those sources. Instead, EPA determined that the “best system of emission reduction” is a building-block approach that includes such beyond-the-fenceline measures as dispatch, development and integration of renewable generation capacity, and regulation of power consumers.59 In this way, the Proposed Rule’s reach extends well beyond the fenceline of those sources, to the states’ regulation of their power sectors.

All of these things require EPA to enlist the states and their officers. While the agency has authority to directly regulate emissions by regulated sources in lieu of a state doing so—which regulation EPA anticipates will account for only a small fraction of total reductions60—the remainder of the actions required will have to be carried out by the states and their officials. Indeed, federal law expressly recognizes states’ exclusive jurisdiction “over facilities used for the generation of electric energy[,] over facilities used in location distribution or only for the transmission of electric energy in interstate commerce, [and] over facilities for the transmission of electric energy consumed wholly by the transmitter.”61 As the Supreme Court has recognized, the “economic aspects of electrical generation”—which lie at the very heart of the Proposed Rule—“have been regulated for many years and in great detail by the states.”62 That includes states’ “traditional authority over the need for additional generating capacity, the type of generating facilities to be licensed, land use, ratemaking, and the like.”63 And it is “state public utility commissions or similar bodies [that] are empowered to make the initial decision regarding the need for power.”64 EPA does not—and could not, under its governing statute—purport to exercise or preempt these traditional state powers.65 Instead, it expects that the states will exercise them to carry out its ends.

The agency is remarkably candid on this point. It acknowledges that states’ “utility regulatory structure” will affect precisely how each complies.66 It anticipates that administration of its rule will “extend federal presence into areas that, to date, largely have been the exclusive preserve of the state and, in particular, state public utility commissions and the electric utility companies they regulate,” but without entering those areas itself.67 It expects that a state plan will include “public utility commission orders.”68 It even recognizes that “affected entities” will include any “entity that is regulated by the state, such as an electric distribution utility, or a private or public third-party entity.”69 Indeed, each state must “demonstrate that it has sufficient legal authority to subject such affected entities other than affected [power plants] to the federally enforceable requirements specified in its state plan.”70 All of these things reflect EPA’s awareness that achieving its emissions targets will require far more than just emissions controls: compliance will require states to fundamentally revamp their regulation of their utility sectors and undertake a long series of regulatory actions, all at EPA’s direction.

The states have no choice in this matter. While EPA makes much of the “State Flexibilities” on offer,71 what states lack, as in New York, is the choice to “decline to administer the federal program.”72 Instead, the states are treated as “administrative agencies of the Federal Government.”73 For that reason, the Proposed Rule impinges on the states’ sovereign authority and therefore, like the actions under review in New York and Printz, exceeds the federal government’s power.74

The Proposed Rule is different in kind from the sort of actions that the Supreme Court has identified as permissible ways to encourage state action: offering states the first shot at regulation, backstopped by federal preemption, and attaching conditions to the receipt of federal funds.75 As to the former, EPA does not have the authority to preempt states’ regulation of their utility sectors and energy usage.76 Therefore states do not have the option of leaving compliance entirely in the hands of the federal government; they must take action to carry out federal policy.77

As to financial inducement,78 even states that refuse to submit implementation plans—thereby leaving the means of achieving CO2 goals to EPA in a federal plan—will still be forced to either carry out any beyond-the-fenceline measures identified by EPA or to account for the disruption and dislocation caused by the imposition of impossible-to-achieve emissions limits on power plants. If EPA effectively mandates the retirement of coal-fired plants, state utility and electricity regulators will have to respond in the same way as if the state itself had ordered the retirements. Likewise, if EPA mandates the installation of massively expensive control technologies or requires measures that disrupt the output of coal-fired plants, the states again will be left to pick up the regulatory slack. In other words, even if a state is willing to accept the consequences of declining to regulate it still does not remain free to decline to carry out aspects of the Proposed Rule—that is, to implement federal policy.79 In addition, as discussed below, to the limited extent that the Proposed Rule may be regarded as imposing conditions on the receipt of federal highway funds, it is unconstitutionally coercive.

This “heads EPA wins, tails the State loses” aspect of the Proposed Rule is particularly damaging to political accountability. It will be counterintuitive, to say the least, for citizens of a state that declines to directly implement the Clean Power Plan to understand that the higher electric rates that they suffer as a result of state measures to maintain reliability are actually the consequence of EPA’s actions. To the contrary, citizens are far more likely to draw the conclusion that these negative impacts are the result of the state’s actions, which would get the chain of causation backwards.

Finally, the Proposed Rule is not the kind of regulation of state activities that the Supreme Court upheld in South Carolina v. Baker80 and Reno v. Condon.81 Baker upheld a federal statute that effectively required states to issue registered bonds.82 And Reno upheld a federal statute restricting a state’s ability to sell drivers’ personal information without their consent.83 The Court found in both cases that the laws at issue “‘regulated state activities,’ rather than ‘seeking to control or influence the manner in which States regulate private parties.’”84 By contrast, the Proposed Rule does exactly what both opinions identified as impermissible: “require the [state] to enact any laws or regulations” and “require state officials to assist in the enforcement of federal statutes regulating private individuals.”85 That means, as the Court recognized in Reno, that New York and Printz control.

In sum, the Proposed Rule violates the Tenth Amendment’s anti-commandeering doctrine and therefore exceeds the federal government’s constitutional authority.86

III. The Proposed Rule Unlawfully Coerces the States

Just as the federal government may not commandeer states to carry out federal policy, it also may not coerce them to the same end by denying them “a legitimate choice whether to accept the federal conditions.”87 The Proposed Rule violates this anti-coercion doctrine in two respects: first, by potentially leveraging federal highway funds to coerce states into implementing a new federal regulatory program; second, by threatening to punish the citizens of states (as well as the states themselves) that do not carry out federal policy.

A. The Spending Clause

The Constitution empowers Congress to “lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.”88 “Incident to this power, Congress may attach conditions on the receipt of federal funds” and thereby encourage states to carry out federal policy.89 But the federal government exceeds its constitutional authority when “‘the financial inducement’” is “‘so coercive as to pass the point at which pressure turns into compulsion.’”90

Thus, in NFIB v. Sebelius, the Supreme Court severed a statutory provision that leveraged states’ existing Medicaid funding to coerce them to implement a fundamentally new program.91 The Chief Justice reasoned that, when new conditions imposed by Congress on funding “take the form of threats to terminate other significant independent grants, the conditions are properly viewed as a means of pressuring the States to accept policy changes.”92 That pressure becomes unconstitutional compulsion when the amount of funds at stake comprises a substantial portion of existing funding and the new conditions “accomplish[] a shift in kind, not merely degree” to the existing program93—that is, they “‘surpris[e] participating States with post-acceptance or ‘retroactive’ conditions.’”94 Thus, the Medicaid expansion constituted unconstitutional coercion because it amounted to an attempt to “‘conscript state agencies into the national bureaucratic army.’”95 The remedy was to give states the option of participating in the new program, without putting at risk their existing funding.96 The Court’s reasoning has been described as establishing an “anti-leveraging principle.”97

That principle calls into question, as a general matter, the constitutionality of the Clean Air Act’s threat to withhold federal highway funding from states that fail to implement and enforce certain regulatory requirements.98 The basic argument is straightforward: “Congress has told states that wish to continue participating in the entrenched and lucrative federal highway program that they can do so only if they also agree to participate in a separate and independent program for reducing air pollution.”99

Professor Jonathan Adler of Case Western Reserve University School of Law has spelled out the argument’s particulars:

First, the Clean Air Act conditions the receipt of money for one program (highway construction) on compliance with conditions tied to a separate program (air pollution control). This may be problematic because a majority of the Court [in NFIB] thought Congress was trying to leverage state reliance on funding for one program (traditional Medicaid) to induce participation in another program (the Medicaid expansion). While the money at stake under the Clean Air Act is far less—most states receive substantially less in highway funds than in Medicaid funds—highway funding is less directly related to air pollution control (particularly from stationary sources) than traditional Medicaid is to the Medicaid expansion.

Though highway funding is less than that for Medicaid, it still may be enough to raise constitutional concerns. Highway funds are raised from a dedicated revenue source in gasoline taxes and placed in the Highway Trust Fund. For many states, federal highway funds represent the lion’s share of their transportation budget. As a consequence, threatening to take highway funds may strike some courts as unduly coercive under NFIB….

The Court in NFIB also stressed that conditional grants of federal funds operate much like a contract, and that the parties are limited in their ability to unilaterally revise the terms. This could expose another vulnerability in the Clean Air Act because while the statutory requirements don’t regularly change, what states must actually do to comply with the Clean Air Act’s terms do. The requirements for state pollution control plans are constantly changing, as the EPA tightens or otherwise revises federal air quality standards and additional pollutants become subject to Clean Air Act regulation. Were this not enough, the recent inclusion of greenhouse gases as pollutants subject to regulation under the Act has radically altered states’ obligations, such that states will now have to do many things they could not have anticipated when the Clean Air Act was last revised in 1990.100

The Proposed Rule is particularly vulnerable under this analysis, for three reasons. First, the regulation of emissions by stationary sources—unlike, arguably, emissions by mobile sources—has absolutely nothing to do with the purposes of the highway funds program.101 Regulation of dispatch, development and integration of zero-emissions generation capacity, and demand-side energy efficiency regulation are even further removed. Second, the Proposed Rule surprises states with new conditions that they never could have imagined when they chose to accept highway funds or to regulate under the Clean Air Act. Whereas prior conditions concerned the control of emissions, the Proposed Rule requires states, for the first time ever, to exercise their previously independent regulatory authority over energy resources and utilities to carry out federal policy. Third, in addition to the substantial amount of money at stake,102 the Proposed Rule conditions states’ continued electric reliability on states’ regulatory actions to mitigate the impact of the steps necessary to achieve the rule’s targets. States, of course, depend on electric reliability to carry out their core police powers, such as public safety and the basic operation of government. EPA’s inducement is therefore “much more than relatively mild encouragement—it is a gun to the head.”103

NFIB suggests that the appropriate remedy would be to sever the penalty. While the federal government may offer conditional grants to encourage states to act, what it “is not free to do is to penalize States that choose not to participate in that new program by taking away their existing [programmatic] funding.”104 Like the statute at issue in NFIB, the Clean Air Act contains a severability clause.105

Alternatively, the preamble of the Proposed Rule states EPA’s view that its individual “building blocks” are severable, “such that in the event a court were to invalidate our finding with respect to any particular building block, we would find that the [standard of performance] consists of the remaining building blocks.”106 “Whether the offending portion of a regulation is severable depends upon the intent of the agency and upon whether the remainder of the regulation could function sensibly without the stricken provision.”107 Because the courts examine these two factors independently, an agency’s preference with respect to severability is not dispositive of the question.108 The D.C. Circuit has declined, over an agency’s entreaties, to sever a portion of a regulation where so doing would cause “loss of flexibility” (a key concern of the regulation) among regulated parties.109 Elsewhere in the Proposed Rule, EPA recognizes that “state flexibilities”—its way of referring to things other than source-level emissions controls—are essential to achieving the rule’s interim and final targets.110 As a result, despite EPA’s stated preference to the contrary, the individual building blocks are not severable in light of the Proposed Rule’s structure and requirements.111 Accordingly, the Act’s severability clause should govern with respect to any penalties.

Published reports of recent public remarks by the EPA Administrator suggest that EPA’s current position is that it lacks authority to withhold highway funds from states that do not submit Clean Power Plan SIPs or from states whose SIPs EPA disapproves, on the basis that the Act’s highway-funds penalty applies only to SIPs under the national ambient air quality standards program.112 While this position is the best reading of the Clean Air Act, and may well be the only permissible reading, EPA does not appear to have made any legally binding statements that this is how it interprets the Act. And if EPA were to do so, the Agency likely would be due deference on such jurisdictional determinations,113 raising the specter that not addressing the coercive aspects of the Clean Power Plan would simply do nothing more than delay the problem until the Plan is sufficiently entrenched throughout the country that the practical effects of its coercive regime would be impossible to reverse.

In sum, the Proposed Rule cannot be regarded as a proper exercise of the federal government’s Spending Clause power to encourage the states to act. It is, instead, an improper attempt to leverage the states’ receipt of highway funds to implement a new and surprising set of conditions and, therefore, violates the anti-coercion principle.

B. The Commerce Clause

The anti-coercion rationale of NFIB applies equally to attempts to employ the Commerce Clause power as a “‘weapon of coercion, destroying or impairing the autonomy of the states.’”114 Whether Congress is threatening to abuse its Spending Clause authority by curtailing existing funding to force states to implement a new and fundamentally different program, or threatening to impair states’ sovereign prerogatives and injure their citizens if they choose not to “opt in” to a cooperative federalism program promulgated under the auspices of the Commerce Clause, the Tenth Amendment operates to prevent the federal government from acting to “‘conscript state [agencies] into the national bureaucratic army.’”115

Applying the same factors as under the Spending Clause, a Commerce Clause regulation “has crossed the line distinguishing encouragement from coercion” when it leverages an existing and substantial entitlement of the citizens of a state or the state itself on a conditional basis in order to induce the state to implement federal policy.116 When, “‘not merely in theory but in fact,’” such threats amount to “economic dragooning that leaves the States with no real option but to acquiesce” to federal demands, they impermissibly “undermine the status of the States as independent sovereigns in our federal system.”117

That describes the Proposed Rule. EPA has stated that, if the states decline to implement its terms, the agency will impose a federal plan that does so.118 But the agency lacks authority to carry out the actions described in its second, third, and fourth building blocks.119 Thus, a federal plan would have to focus on heat-rate improvements at coal-fired facilities, and—to achieve anywhere near the 30 percent average reduction in CO2 emissions targeted by EPA—would have to impose controls so burdensome that they would force plant retirements and cripple the states’ electric power systems.120 The point, of course, would be to force states to pick up the slack necessary to maintain affordable and reliable electric service through “beyond-the-fenceline” measures that are beyond EPA’s authority, regardless of whether a state chooses to fix the problems that EPA has created through a state implementation plan or through other “voluntary” measures. In neither instance could it be said that the decision to adopt or reject EPA’s preferred policies “‘remained the prerogative of the States.’”121 Instead, EPA’s “inducement” “is a gun to the head,” in light of the disruption and dislocation to citizens and the state itself if EPA were to carry out its threat.122

In sum, while EPA has the authority pursuant to the Commerce Clause to directly regulate certain emissions by stationary sources, a federal plan to implement the Proposed Rule would be inevitably and inherently coercive to the states.123

IV. Constitutional Avoidance

A court reviewing final action that is materially similar to EPA’s Proposed Rule could apply the doctrine of constitutional avoidance to preclude EPA from interpreting Section 111 in a way that exceeds the limits of federal power. The statutory language is not only readily amenable to such an interpretation, but is best read that way.

Out of respect for Congress, which is also bound by and swears an oath to uphold the Constitution, federal courts must construe statutes, “if fairly possible, so as to avoid not only the conclusion that it is unconstitutional, but also grave doubts upon that score.”124 Thus, “where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.”125

Such an acceptable construction is available here. The key statutory term underlying EPA’s constitutionally suspect “building block” approach is “best system of emission reduction,” which the agency defines to include any possible “measures…to improve emission rates and to reduce or limit…emissions.”126 In effect, the agency views anything relating to a source—no matter how tenuously related or far removed—as fair game for regulations that nominally apply to the source alone. Among the problems with this approach is that it brooks no limiting principle; EPA claims authority to force states to regulate anything connected to the electric system and anyone using electricity, in any way that might reduce electricity consumption. As shown above, the Proposed Rule’s constitutional infirmities are the result of its attempted centralization of the energy economy through measures that occur beyond the fenceline, in addition to more typical source-level requirements.

But EPA’s unbounded definition of “best system of emission reduction” is not the only or the best reading of the term. The Supreme Court, viewing this language, easily recognized that it refers to “technologically feasible emission controls”—that is, emission-reduction technologies implemented at the source.127 Indeed, EPA has reached the same conclusion in the context of Section 111(b) standards, which rely on the same term, explaining that that provision “assur[es] cost-effective controls are installed on new, reconstructed, or modified sources.”128 This reading, limited to source-level measures, also avoids constitutional doubt, because it concerns only sources of emissions themselves, which Congress unquestionably has the authority to regulate.

Accordingly, to avoid the constitutional problems identified in this analysis, a federal court would be required to read the statutory term “best system of emission reduction” to encompass only source-level measures and would, on that basis, have to vacate EPA’s action as contrary to law.

V. Conclusion

What’s past is prologue, and this is not the first time that EPA has been oblivious to the constitutional limits on its authority to force the states to administer its own programs. In the mid-1970s, as the agency was still working out the terms of its relationship with the states under the Clean Air Act Amendments of 1970, it “order[ed] the states to enact statutes and to establish and administer programs to force their citizens to comply with [its] federal directive[s].”129 That effort was stopped in its tracks by three decisions, in quick succession, of the courts of appeals, astonished that a federal agency would attempt to arrogate such authority to itself.130 By the time the Supreme Court agreed to review the regulations, “the Government declined even to defend them, and instead rescinded some and conceded the invalidity of those that remained.”131

Since that time, the Supreme Court has been particularly attentive to overreaching by the federal government in its relationship with the states. Decisions like New York, Printz, and NFIB have recognized clear prohibitions on federal attempts to commandeer the states, to commandeer their officials, and to coerce them into action. The only constant in this changing field is that EPA has ignored these constitutional imperatives in its zeal to regulate. The best that can be said of the agency’s proposed Clean Power Plan is that, if finalized in anything like its current form, it will provide another valuable opportunity for the courts to advance the cause of federalism when they strike it down.



1  42 U.S.C. § 7401(a)(3).

2  Gen. Motors Corp. v. United States, 496 U.S. 530, 532 (1990).            

3  See generally 42 U.S.C. § 7410.

4  See 42 U.S.C. § 7410(a)(2)(A)–(M).

5  Train v. NRDC, 421 U.S. 60, 71 n.11 (1975).

6  Id. at 79.

7  42 U.S.C. § 7411(d)(1).

8  Id.

9  42 U.S.C. § 7411(a)(1).

10  42 U.S.C. § 7411(d)(1)(B).

11  42 U.S.C. § 7411(d)(2).

12  79 Fed. Reg. 34,830, 34,832/2 (June 18, 2014).

13  Id. at 34,832/3.

14  Id. at 34,833/1.

15  Id. at 34,836/1.

16  Id. at 34,836, 34,859, 34,862–63, 34,866–68, 34,871.

17  EPA, Fact Sheet: Clean Power Plan Flexibility: Flexible Approach to Cutting Carbon Pollution, June 2, 2014,

18  79 Fed. Reg. at 34,954/1.

19  Id.

20  Id. at 34,836/2.

21  Id. at 34,926/2 (reciting EPA’s assumption that efficiency gains will reduce emissions by 6 percent, on average).

22  See, e.g., Decl. of Scott Deloney, Indiana Department of Environmental Management, at ¶ 3, West Virginia v. EPA, No. 14-1146 (D.C. Cir. filed Nov. 26, 2014); Decl. of Laura Crowder, West Virginia Department of Environmental Protection, at ¶¶ 4, 7, West Virginia v. EPA, No. 14-1146 (D.C. Cir. filed Nov. 26, 2014); Decl. of Thomas Gross, Kansas Department of Health and Environment, at ¶ 3, West Virginia v. EPA, No. 14-1146 (D.C. Cir. filed Nov. 26, 2014); Decl. of Brian Gustafson, South Dakota Department of Environment and Natural Resources, at ¶¶ 6, 8, West Virginia v. EPA, No. 14-1146 (D.C. Cir. filed Nov. 26, 2014); Decl. of Todd Parfitt, Wyoming Department of Environmental Quality, at ¶¶ 5–6, West Virginia v. EPA, No. 14-1146 (D.C. Cir. filed Nov. 26, 2014).

23  See, e.g., Decl. of Laura Crowder, West Virginia Department of Environmental Protection, at ¶ 4, West Virginia v. EPA, No. 14-1146 (D.C. Cir. filed Nov. 26, 2014).

24  79 Fed. Reg. at 34,926/2 (6 percent, on average, per EPA). And even that may not be achievable in many states. See, e.g., Decl. of Laura Crowder, West Virginia Department of Environmental Protection, at ¶ 4, West Virginia v. EPA, No. 14-1146 (D.C. Cir. filed Nov. 26, 2014).

25  See, e.g., Decl. of Laura Crowder, West Virginia Department of Environmental Protection, at ¶ 4, West Virginia v. EPA, No. 14-1146 (D.C. Cir. filed Nov. 26, 2014); Decl. of Thomas Gross, Kansas Department of Health and Environment, at ¶ 3, West Virginia v. EPA, No. 14-1146 (D.C. Cir. filed Nov. 26, 2014).

26  See Decl. of Brian Gustafson, South Dakota Department of Environment and Natural Resources, at ¶ 9, West Virginia v. EPA, No. 14-1146 (D.C. Cir. filed Nov. 26, 2014).

27  Id.

28  See, e.g., Decl. of Robert Hodanbosi, Ohio Environmental Protection Agency, at ¶ 5.B, West Virginia v. EPA, No. 14-1146 (D.C. Cir. filed Nov. 26, 2014) (current law and practices “require[] that the plants are dispatched in an economic manner with the most economic being used first”).

29  Decl. of Scott Deloney, Indiana Department of Environmental Management, at ¶ 3, West Virginia v. EPA, No. 14-1146 (D.C. Cir. filed Nov. 26, 2014); Decl. of Robert Hodanbosi, Ohio Environmental Protection Agency, at ¶ 5.B, West Virginia v. EPA, No. 14-1146 (D.C. Cir. filed Nov. 26, 2014).

30  Decl. of Brian Gustafson, South Dakota Department of Environment and Natural Resources, at ¶ 10, West Virginia v. EPA, No. 14-1146 (D.C. Cir. filed Nov. 26, 2014).

31  Decl. of Todd Parfitt, Wyoming Department of Environmental Quality, at ¶ 6, West Virginia v. EPA, No. 14-1146 (D.C. Cir. filed Nov. 26, 2014).

32  Decl. of Thomas Gross, Kansas Department of Health and Environment, at ¶ 3, West Virginia v. EPA, No. 14-1146 (D.C. Cir. filed Nov. 26, 2014).

33  Decl. of Laura Crowder, West Virginia Department of Environmental Protection, at ¶ 5, West Virginia v. EPA, No. 14-1146 (D.C. Cir. filed Nov. 26, 2014);

34  Decl. of Thomas Gross, Kansas Department of Health and Environment, at ¶ 3, West Virginia v. EPA, No. 14-1146 (D.C. Cir. filed Nov. 26, 2014).

35  Decl. of Robert Hodanbosi, Ohio Environmental Protection Agency, at ¶ 5.D, West Virginia v. EPA, No. 14-1146 (D.C. Cir. filed Nov. 26, 2014).

36  Id.

37  79 Fed. Reg. at 34,899/3, 34,901/3, 34,907/1, 34,933/1, 34,935/1 (acknowledging that the Proposed Rule will require retirements).

38  Decl. of Todd Parfitt, Wyoming Department of Environmental Quality, at ¶ 6, West Virginia v. EPA, No. 14-1146 (D.C. Cir. filed Nov. 26, 2014).

39  U.S. Const. amend. X.

40  United States v. Darby, 312 U.S. 100, 124 (1941).

41  New York v. United States, 505 U.S. 144, 156 (1992).

42  Id.

43  Id. at 161.

44  Id. at 166.

45  Id. at 153–54. If the state did not take possession of the waste, it would nonetheless be “liable for all damages directly or indirectly incurred” as a result of its failure to do so. Id.

46  Id. at 167 (quoting South Dakota v. Dole, 483 U.S. 203, 206 (1987)). Which is not to suggest that the Proposed Rule is a proper exercise of that power. See infra § III.A.

47  Id.

48  Id. at 168.

49  Id. at 169.

50  Id. at 175.

51  Id. at 176–77.

52  Id. at 178, 181.

53  Id. at 188.

54  521 U.S. 898 (1997).

55  Id. at 903–04.

56  Id. at 904.

57  Id. at 928 (alterations omitted) (quoting Brown v. EPA, 521 F.2d 827, 839 (9th Cir. 1975), vacated on other grounds, 431 U.S. 99 (1977)).

58  Id. (quotation marks omitted).

59  79 Fed. Reg. at 34,836/1.

60  Id. at 34,859/3 (“EPA believes that implementation of all identified best practices and equipment upgrades at a facility could provide total heat rate improvements in a range of approximately 4 to 12 percent.”).

61  16 U.S.C. § 824(b)(1). See also 42 U.S.C. § 2021(k) (recognizing presumptive role of states in power regulation).

62  Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 206 (1983).

63  Id. at 212.

64  Id. (quoting Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 550 (1977)).

65  Crucially, the statute says absolutely nothing about preempting states’ traditional regulation of utilities and generation. See Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947) (“[W]e start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.”); United States v. Bass, 404 U.S. 336, 349 (1971) (“[U]nless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance.”); Will v. Michigan Dep’t of State Police, 491 U.S. 58, 65 (1989); Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) (“Congress may legislate in areas traditionally regulated by the States. This is an extraordinary power in a federalist system. It is a power that we must assume Congress does not exercise lightly.”); Bond v. United States, 134 S. Ct. 2077, 2088–90 (2014). Moreover, the Proposed Rule and its preamble do not discuss or even mention preemption. Cf. Wyeth v. Levine, 555 U.S. 555, 576–77 (2009) (suggesting that an agency’s assertion of preemption may be a necessary, but not sufficient, condition for an ambiguous federal statute to preempt state law).

66  79 Fed. Reg. at 34,833/2, 34,900/3.

67  Id. at 34,902/1.

68  Id. at 34,914/3.

69  Id. at 34,917/3.

70  Id.

71  Id. at 34,897/1–98/1.

72  505 U.S. at 177. Although EPA may impose, administer, and enforce a federal plan that addresses the kind of efficiency improvements implicated by its first building block, 42 U.S.C. § 7411(d)(2), as described below, implementation of the other building blocks will require state action, which EPA does not claim the authority to preempt.

73  505 U.S. at 188.

74  FERC v. Mississippi, 456 U.S. 742 (1982), does not alter this conclusion, for two reasons. First, FERC upheld “only the ‘command’ that state agencies ‘consider’ federal standards, and again only as a precondition to continued state regulation of an otherwise pre-empted field.” Printz, 521 U.S. at 926. The Proposed Rule, by contrast, requires states to carry out federal policy and does not offer to relieve states of the burden of so doing. Second, to the extent that FERC could be read to approve an broader conception of permissible commandeering, that holding has been narrowed (if not entirely overruled) by New York, 505 U.S. at 161–62 (FERC “upheld the statute at issue because it did not view the statute as such a command”), and Printz, 521 U.S. at 926. See also New York, 505 U.S. at 204–05 (White, J., concurring in part and dissenting in part) (accusing the majority of overriding FERC).

75  Id. at 167.

76  In at least one instance, EPA has approved a SIP revision limiting utilization of a facility, which would be among the measures required to carry out the Proposed Rule’s second building block. Approval and Promulgation of Air Quality Implementation Plans; Oklahoma; Regional Haze and Interstate Transport Affecting Visibility; State Implementation Plan Revisions; Revised BART Determination for American Electric Power/Public Service Company of Oklahoma Northeastern Power Station Units 3 and 4, 79 Fed. Reg. 12,944, 12,945/1 (Mar. 7, 2014). EPA, however, never claimed authority to carry out such measures itself through a federal plan. See id. at 12,951/2 (noting that the preexisting FIP “does not restrict capacity utilization”). Such reductions would also have to be accompanied by other state regulatory action that is not within EPA’s purview, such as changes to dispatch and utility regulation.

77  Contrast with Hodel v. Va. Surface Mining & Reclamation Ass’n, Inc., 452 U.S. 264 (1981), which concluded that the Surface Mining Control and Reclamation Act of 1977 did not present a commandeering problem because it merely made compliance with federal standards a precondition to continued state regulation in an otherwise pre-empted field. See also Printz, 521 U.S. at 926.

78  The Clean Air Act provides EPA authority to withhold federal highway funding from states that fail to make certain approvable SIP submissions or fail to enforce their SIPs. 42 U.S.C. § 7509. This penalty is discussed further below.

79  Compare to New York, 505 U.S. at 176 (“Either way, ‘the Act commandeers the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.’”) (quoting Hodel, 452 U.S. at 288).

80  485 U.S. 505 (1988)

81  528 U.S. 141 (2000)

82  485 U.S. at 514–15.

83  528 U.S. at 143–44, 151.

84  Id. at 150 (alterations omitted) (emphasis added) (quoting Baker, 485 U.S. at 514–15).

85  Id. at 151. See also Baker, 485 U.S. at 514 (explaining that statute “does not…seek to control or influence the manner in which States regulate private parties”).

86  The Proposed Rule asserts that each of its four building blocks is severable. 79 Fed. Reg. at 34,892/2. This claim is discussed and rejected in § III.A.

87  NFIB v. Sebelius, 132 S. Ct. 2566, 2602 (2012) (Roberts, C.J.). Chief Justice Roberts’s opinion, being the “position taken by those Members who concurred in the judgments on the narrowest grounds,” is controlling. Marks v. United States, 430 U.S. 188, 193–94 (1977) (quotation marks omitted). Subsequent citations to NFIB refer to the Chief Justice’s controlling opinion, unless otherwise noted.

88  U.S. Const. art. I, § 8, cl. 1.

89  Dole, 483 U.S. at 206.

90  NFIB, 132 S. Ct. at 2604 (quotation marks omitted) (quoting Dole, 483 U.S. at 211).

91  Id. at 2606–07.

92  Id. at 2604.

93  Id. at 2605.

94  Id. at 2606 (quoting Pennhurst State School & Hosp. v. Halderman, 451 U.S. 1, 25 (1981)).

95  Id. at 2607 (alteration omitted) (quoting FERC, 456 U.S. at 775 (O’Connor, J., concurring in judgment in part and dissenting in part)). The joint NFIB dissent of Justices Scalia, Kennedy, Thomas, and Alito reaches the same conclusion based on arguably broader reasoning. See id. at 2661, 2666 (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting).

96  Id. at 2607.

97  Samuel Bagenstos, The Anti-leveraging Principle and the Spending Clause After NFIB, 101 Geo. L.J. 861, 871 (2013) [hereinafter Bagenstos].

98  42 U.S.C. § 7509.

99  Bagenstos, supra note 97, at 917.

100  Jonathan Adler, Could the Health Care Decision Hobble the Clean Air Act?,  July 23, 2012, See also Jonathan Adler, Judicial Federalism and the Future of Federal Environmental Regulation, 90 Iowa L. Rev. 377, 449–52 (2005) (pre-NFIB analysis finding that “[i]t is not clear that threatening federal highway moneys falls squarely within Dole’s holding”).

101  Bagenstos, supra note 97, at 918–19 (“Insofar as they address stationary sources of pollution, the CAA’s requirements would appear, on the same analysis, to be separate and independent from the highway-grant program. Those requirements do not govern how states should construct and maintain highways. Nor do they govern the processes by which states should choose which highways to construct and maintain. And they do not even govern the use of the highways constructed or maintained with federal funds.”) (footnotes omitted).

102  See id. at 919 (“The average state receives more than three-quarters of a billion dollars a year in federal transportation funds,” accounting for nearly 8 percent of its budget.).

103  NFIB, 132 S. Ct. at 2604 (quotation marks omitted).

104  Id. at 2607.

105  42 U.S.C. § 7615.

106  79 Fed. Reg. at 34,892/2.

107  MD/DC/DE Broadcasters Ass’n v. FCC, 236 F.3d 13, 22 (D.C. Cir. 2001) (citing K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 294 (1988)).

108  Id.

109  Id.

110  E.g., 79 Fed. Reg. at 34,837/2 (explaining that interim goals depend on such flexibilities); id. at 34,864/2 (accomplishing “necessary” infrastructure improvements depends on “state flexibilities”); id. at 34,898/1 (flexibilities “ensure that states will be able to achieve their final CO2 emission performance goals”).

111  In addition, it is not apparent that the Proposed Rule’s “building blocks” are the appropriate subjects of severability analysis, given that EPA uses them to calculate overall emissions reductions and purports not to mandate that states achieve specific emissions reductions with respect to each building block. See id. at 34,837. In other words, the building blocks themselves are not requirements, but inputs to EPA’s state-specific target calculations, and it is the requirement to achieve the targets that causes the rule to be unconstitutional.

112  See Jean Chemnick, Agency won’t withhold highway funds for Clean Power Plan—McCarthy, E&E News PM, Mar. 30, 2015. 

113  See City of Arlington v. FCC, 133 S. Ct. 1863 (2013).

114  NFIB, 132 S. Ct. at 2603 (alteration omitted) (quoting Charles C. Steward Mach. Co. v. Davis, 301 U.S. 548, 586 (1937)).

115  Id. at 2606–07 (quoting FERC, 456 U.S. at 775 (O’Connor, J., concurring in judgment in part and dissenting in part)).

116  Id. at 2603 (quotation marks omitted).

117  Id. at 2602, 2604–05 (quoting Dole, 483 U.S. at 211–12).

118  79 Fed. Reg. at 34,951/2. See also Timothy Cama, EPA delays landmark climate rule, The Hill, Jan. 7, 2015, (quoting EPA official’s statement that the agency intends “to have a federal plan available, should there be states that don’t submit plans”).

119  See supra § II; William Yeatman, What Would a Clean Power Plan FIP Look Like?, Jan. 14, 2015, 14/what-would-a-clean-power-plan-fip-look-like/; Comments of Hon. Charles W. Pickering, Sr. & Hon. Thomas Scott, EPA-HQ-OAR-2013-0602-33150, Dec. 1, 2014 (“Pickering & Scott Comments”).

120  Pickering & Scott Comments at 43–44.

121  NFIB, 132 S. Ct. at 2604 (alteration omitted) (quoting Dole, 483 U.S. at 211).

122  Id.

123  The holding of New York v. United States, 505 U.S. 144, 173–74 (1992), regarding the “access incentive” of the Low–Level Radioactive Waste Policy Amendments Act of 1985, is not to the contrary. That provision provided that “[s]tates may either regulate the disposal of radioactive waste according to federal standards..., or their residents who produce radioactive waste will be subject to federal regulation authorizing sited States and regions to deny access to their disposal sites.” Id. at 174. The Court held that this was a permissible “conditional exercise of Congress’ commerce power” that “does not intrude on the sovereignty reserved to the States by the Tenth Amendment.” Id. First, by contrast, a federal plan implementing the Proposed Rule would invade state sovereignty by inhibiting states’ exercise of their traditional police powers, which depend on a reliable electric system. Second, the state would not have the “the choice of regulating that activity according to federal standards or having state law pre-empted by federal regulation,” id. at 173–74, in light of EPA’s inability to directly impose most of the regulatory activities targeted by the Proposed Rule. And third, it follows that a state would not be free to “continue to regulate…in any manner its citizens see fit,” id. at 174, given the necessity of state action to mitigate the impact of federal action in the absence of complete preemption. In this respect, the Proposed Rule is much more like the “take title” provision that the Court rejected. As it explained, “[a] choice between two unconstitutionally coercive regulatory techniques is no choice at all.” Id. at 176. Nevada v. Skinner, 884 F.2d 445, 453 (9th Cir. 1989), is inapt for the same reasons, fails to anticipate the anti-commandeering and anti-coercion doctrines of New York and NFIB, and has been (at least in part) abrogated by New York.

124  United States v. Jin Fuey Moy, 241 U.S. 394, 401 (1916).

125  DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988).

126  79 Fed. Reg. at 34,836/1. See also id. at 34,888/3–89/1 (discussing objections to this definition).

127  Hancock v. Train, 426 U.S. 167, 193 (1976). See also PPG Indus., Inc. v. Harrison, 660 F.2d 628, 636 (5th Cir. 1981) (“Setting standards which in effect require a use of a certain type of fuel, without regard to other types of emission control, appears to be a work practice or operation standard beyond the statutory authority of the EPA.”); Bethlehem Steel Corp. v. EPA, 651 F.2d 861, 869 (3d Cir. 1981) (“system” is something that a source can “install”).

128  73 Fed. Reg. 34,072, 34,073/2 (June 16, 2008).

129  District of Columbia v. Train, 521 F.2d 971, 990 (1975), vacated on other grounds by EPA v. Brown, 431 U.S. 99 (1977).

130  Id. at 994; Maryland v. EPA, 530 F.2d 215, 226 (4th Cir. 1975); Brown v. EPA, 521 F.2d 827, 838–42 (9th Cir. 1975).

131  Printz, 521 U.S. at 925.

On June 2, 2014, the U.S. Environmental Protection Agency, under President Obama's Climate Action Plan, proposed a commonsense plan to cut carbon pollution from power plants. States, cities and businesses across the country are already taking action to address the risks of climate change.
Add a comment...
Have him in circles
55 people
Jeremy Sellis's profile photo
Andrew Grossman's profile photo
Tina Zimmer's profile photo
Jay Tee's profile photo
Silvana Pereira's profile photo
Susan Hardwicke, Ph.D.'s profile photo
Joe Anguilano's profile photo
Lee Hwuk Kok's profile photo
Mike O'Horo's profile photo
  • Baker Hostetler
    Lawyer, present
  • Hunton & Williams, U.S. Department of Justice, Council on Competitiveness, American Enterprise Institute
Map of the places this user has livedMap of the places this user has livedMap of the places this user has lived
Washington, DC area
Leading conservative thinker, Constitutional attorney and media commentator

David B. Rivkin Jr. fills an important role in modern political and legal debate. 

Using his sharp legal mind, he strives to base his viewpoints and recommendations on the Constitution and the law, the primary sources protecting us from tyranny. 

Rivkin grew up in Russia and he is passionate about his commitment to freedom and his adopted country, once saying in an interview: 

“I grew up in the Soviet Union, where the individual's interests were always subordinated to the whims of the state, and where the government was the law. Even so, my parents and grandparents endured much worse. They lived in Stalin's Russia, and they knew real fear—not just occasionally, but every day—fear of the state and its agents.” 

The first to challenge the constitutionality of President Obama’s new health care law, Rivkin is currently involved in several high profile cases, including representing former Secretary of State Donald Rumsfeld in a suit brought by convicted terrorist Jose Padilla. He is also involved in the leading climate reform cases in the land. 

Rivkin is an attorney at the D.C. law firm Baker Hostetler, where he is a member of the firm’s litigation, international and environmental groups, and co-chairs the appellate and major motions team. He has extensive experience in constitutional, administrative and international law litigation. 

A frequent editorial writer in major publications such as The Wall Street Journal, Rivkin remains one of the leading conservative thinkers and strategists in the land, often sought out for his forward thinking vision.

More at:

Bragging rights
2011 Burton Awards: 2011 Legal Writing Award Winners - Law Firm: David B. Rivkin, Jr. and Lee A. Casey of Baker Hostetler LLP, :Why the 'Don't Ask, Don't Tell' Policy is Doomed"
  • Georgetown University
  • Columbia University School of Law
Basic Information
Other names
David B. Rivkin, Jr.