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David Rivkin
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This Latest Labor Gambit Is a Piece of Work

By David B. Rivkin Jr. and Jay P. Krupin, in the Wall Street Journal
July 5, 2016

The general counsel of the National Labor Relations Board, Richard F. Griffin Jr., recently launched another salvo in the board’s continuing assault on the rights of employers and employees. He aims to alter labor law by punishing employers who—following the publicly expressed wishes of their employees—withdraw recognition from unions.

Currently, employers can refuse to recognize or bargain with incumbent unions if most of their employees wish to free themselves from the union’s grasp. For example, if a majority of employees send signed petitions to an employer’s human-resources department, or voluntarily tell management that they want the union gone, the company can, and should, decline to bargain or acknowledge the legitimacy of the union.

Under the proposed new National Labor Relations Board policy, employers will be precluded from walking away from a union, and will be sanctioned by the NLRB, unless employees first vote to leave in an NLRB-conducted secret-ballot election.

Such elections tend to be costly and protracted affairs, which may be part of their appeal to the NLRB now. Unions have also long disfavored secret-ballot elections. Secret balloting reduces the chance of employees being intimidated. Such elections also subject union-organizing activities to government oversight.

Instead, with the NLRB’s blessing, unions have been trying mightily to get Congress to enact a new statute which would require “card check,” a procedure under which unions are recognized upon a public attestation by the majority of workers. Pursuant to the existing labor law, the NLRB has blessed card-check use, but its availability currently depends on employer acceptance, which is usually not forthcoming. Congress has resisted mandating card check, which could leave employees open to intimidation by fellow workers and union organizers.

The irony in this latest proposal is that it’s coming from a government agency that enthusiastically supports card check for unionization votes, but opposes it as a mechanism for deunionization votes. What Mr. Griffin is proposing is the Hotel California version of unionization: You can check into a union but you can’t check out, at least not easily.

Given its pro-union makeup, the NLRB is likely to approve this proposal. But alongside its policy flaws—making it harder for an employer and its employees to remove a union they no longer want—the proposal is also unlawful. Under settled law, executive-branch agencies must implement statutes giving full effect to congressional intent, as reflected in the statute as a whole.

As the Supreme Court explained in an early case, United States v. Boisdore’s Heirs (1850), “[i]n expounding a statute, we must not be guided by a single sentence, or member of a sentence but look to the provisions of the whole law, and to its object and policy.”

The two key congressional goals featured in the National Labor Relations Act are: (1) facilitating employers’ and employees’ acceptance of unions to avoid industrial strife causing damage to the economy and (2) allowing employees to exercise full freedom of association, self-organization, and designation of representatives of their own choosing. In construing the Act, the board must advance both of these goals. It cannot write either one out of existence.

If the will of a majority of workers is good enough to create union representation without an NLRB-overseen election, then it must be sufficiently fair and expedient to end it, especially since card check operates the same in both scenarios. Mr. Griffin concluded, however, that the card-check approach is sufficiently conducive to facilitating the acceptance of labor unions by employers and employees to justify its use. But he also held that, when the ejection of a union is at issue, card check cannot be used—even though it also is perfectly conducive to the employee’s right to exercise full freedom of self-organization. This approach undermines this right and entirely ignores the congressional goal of facilitating it.

Mr. Griffin’s initiative, even before it is formally blessed by the NLRB, will have an immediate adverse impact on employers and employees. Unions will read this policy announcement as an invitation to file unfair-labor-practice charges on this issue, knowing they will receive favorable consideration from the agency. Overzealous NLRB regional directors are sure to investigate charges with partiality.

This initiative is yet another example of an unconstitutional overreach by the NLRB. Fortunately, it can be successfully challenged, especially since the courts are unlikely to defer to Mr. Griffin’s implausible parsing of the National Labor Relations Act. In a series of recent Supreme Court cases, including National Assn. of Home Builders v. Defenders of Wildlife (2007) and UARG v. EPA (2014), the Supreme Court slammed agencies for rewriting “unambiguous statutory terms” to advance “bureaucratic policy goals,” calling such actions “a severe blow to the Constitution’s separation of powers.”

Clearly, the judiciary has had enough of statutory rewriting masquerading as statutory interpretation.

Source: http://www.wsj.com/articles/this-latest-labor-gambit-is-a-piece-of-work-1467760467

Mr. Rivkin is a constitutional litigator who served in the Justice Department and the White House Counsel’s Office under Presidents Reagan and George H.W. Bush. Mr. Krupin is a labor lawyer who has testified before Congress on labor-law reforms.
David B. Rivkin Jr., and Jay P. Krupin on the National Labor Relations Board’s latest gambit: The NLRB’s lawyer wants to punish employers who, following workers’ wishes, try to end unionization.
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Release the GOP Delegates

Trump’s nomination isn’t inevitable—delegates won’t be legally ‘bound’ going into the convention.

by Erik O'Keefe and David B. Rivkin Jr., Wall Street Journal, June 12, 2016

Recent weeks have not been kind to the Grand Old Party. Republicans have been embarrassed by Donald Trump ’s racist attacks on Gonzalo Curiel, the federal judge presiding over a fraud lawsuit against Trump University. They have watched him assault popular GOP leaders like Speaker Paul Ryan and New Mexico Gov. Susana Martinez. Many among the party faithful are realizing that Mr. Trump may flame out before Election Day—and that he could bring the party’s slate of candidates down with him.

Yet conventional wisdom remains that Mr. Trump’s nomination is inevitable. The theory is twofold: First, his primary victories give him enough delegates to prevail on the first ballot at the Republican convention in July. Second, those delegates are bound to vote for Mr. Trump by state laws and GOP rules.

Not so fast. Although 20 states have passed laws that purport to bind delegates, these statutes can’t be legally enforced. When Republican delegates arrive in Cleveland to select their party’s nominee, they should recognize that they are bound only by their consciences.

It’s true that Rule 16 of the Republican National Committee says primaries will be used to “allocate and bind” delegates. But that rule expires at the convention’s start. Though a majority of delegates could vote to adopt a binding rule at the convention, that’s unlikely. It has happened only once before, in 1976, when loyalists of President Ford sought to block the insurgency of Ronald Reagan. This year the Rules Committee will be packed with supporters of Sen. Ted Cruz, who has not endorsed Mr. Trump.

State laws that purport to bind delegates can’t be enforced without violating the First Amendment. A political party is a private association whose members join together to further their shared beliefs through electoral politics, and they have a right to choose their representatives. The government has no business telling parties how to select their candidates or leaders: That would be a serious infringement of the rights to free association and speech.

Such infringements can be upheld only if they are narrowly tailored to advance a compelling government interest. Yet states have no valid interest, much less a compelling one, in binding delegates. As the Supreme Court recognized in Cousins v. Wigoda (1975): “The States themselves have no constitutionally mandated role in the great task of the . . . selection of Presidential and Vice-Presidential candidates.”

Those laws also chafe against the vertical separation of powers governing the federal-state relationship. The Framers carefully divided authority over elections for the presidency, which is the only truly national office, between the federal government and the states. They established an electoral college and, under Article II of the Constitution, gave state legislatures the power to determine how electors are selected. As the Supreme Court held in Ray v. Blair (1952), states can require electors to pledge support for their party’s candidates.

But nothing gives states authority to meddle in a party’s nominating process. The Supreme Court in Democratic Party v. Wisconsin ex rel. LaFollette (1980) explicitly rejected Wisconsin’s argument that its constitutional power over electors allowed it to regulate the selection of delegates to national party conventions. Any connection between the two processes, the majority held, “is so remote and tenuous as to be wholly without constitutional significance.”

State party rules that bind delegates are also legally irrelevant. The national party is its own organization, with the right to decide how voting at the convention is conducted. The example of 1976 aside, the GOP has long recognized delegates’ independence to vote as they see fit. As the president of the 1876 convention declared, following a contentious debate on that very issue: “it is the right of every individual member thereof to vote his individual sentiments.”

That Republican delegates retain the power to make their own decisions does not disenfranchise primary voters any more than the Democrats’ designation of hundreds of party insiders as “superdelegates” does. Primary elections are “preference contests” that indicate the sentiments of the grass-roots and may (or may not) lead to the election of delegates who may (or may not) support a given candidate at the convention. The ultimate power to choose a nominee has always resided in the party itself.

This is less about Mr. Trump than restoring the parties’ proper place in our democratic system. As the political scientist E.E. Schattschneider wrote in “Party Government,” his 1942 book: “Democracy is not found in the parties, but between the parties.” Treating parties like mini-democracies reduces choice in the general election by crowding out the features that give each party its unique identity. Having states regulate parties would impermissibly enhance the government’s control over the exercise of core political rights.

Mr. Trump should welcome an open convention, with delegates unbound. It would give him the opportunity to build consensus and unify the party, which would make him a stronger candidate for November. Changing the rules to ensure his coronation would be a sign of weakness. A candidate who cannot win the support of a majority of Republican delegates voting their consciences does not deserve to be the nominee and certainly has no legal right to be.

If the Grand Old Party stands for nothing more than anointing the candidate with the most “bound” delegates, then it stands for nothing. Free the delegates and let Republicans be Republicans.

Source: http://www.wsj.com/articles/release-the-gop-delegates-1465769777

Mr. O’Keefe is on the boards of the Citizens in Charge Foundation and Wisconsin Club for Growth. Mr. Rivkin, a constitutional litigator, served in the White House Counsel’s Office and the Justice Department in the Reagan and George H.W. Bush administrations.
Trump’s nomination isn’t inevitable—delegates won’t be legally ‘bound’ going into the convention.
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Don't bring Garland into 2016 presidential circus: Column

by David B. Rivkin, Jr., and Lee A. Casey, USA Today, March 16th, 2016

President Obama has announced Judge Merrick Garland, of the United States Circuit Court for the District of Columbia, as his choice to replace the late Justice Antonin Scalia on the Supreme Court. Although Judge Garland is certainly a credible candidate for the court, the Senate should postpone consideration of his nomination until after the new president takes office in January 2017. This has nothing to do with Judge Garland, but is the indispensable measure to protect the Supreme Court's institutional legitimacy.

Scalia’s seat must be filled, but there is emphatically no constitutional timeline that either the president or the Senate must follow in making a new appointment. If that process is undertaken now, the nominee will for all intents and purposes become a “candidate” in this election and the Supreme Court — and by extension the federal judiciary in general — will be further politicized with concomitant damage to the legitimacy of the only unelected, and emphatically non-political, branch of the federal government.

There is little doubt that the electorate, left, right and center, already harbors deep doubts about the efficacy, legitimacy and even good will of all governmental institutions and that the Supreme Court's own standing has been steadily undermined by relentless attacks on its decisions from all parts of the ideological spectrum. Although the court remains more popular than Congress and about as popular as the president, at the same time it is a counter-majoritarian institution and, as a result, its legitimacy is inherently far more brittle than that of the elected branches of government.

It is particularly vulnerable to the perception that it is acting politically, rather than scrupulously applying the Constitution and statutes to adjudicate cases. As Alexander Hamilton famously explained in The Federalist, delineating the separation of powers among the three federal branches and defending the proposition that the judiciary was to be “the least dangerous" branch, it was to “have neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” But, with no electoral constituency to supports its legitimacy and authority, that judgment must be respected. Unfortunately, after three generations as a central force in effecting various types of social and political changes, the Supreme Court’s judgments are respected mostly by the “winners” of the relevant political battles it has determined to resolve.

This state of affairs, particularly when coupled with the fact that a number of intense battles between Congress and the president and the president and the states — implicating both the core separation of powers issues and pivotal matters of public policy — are now on the court's docket, and will remain there for the foreseeable future, requires that both Congress and the president work to support and protect its legitimacy as a non-political institution.

The problem here, and the most likely explanation for the court’s declining approval ratings, is not what issues the court decides — as early as the 1830s Alexis de Tocqueville noted that “scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question” — but how it decides. Or, perhaps more to the immediate point, how it is perceived to decide those issues.

With this in mind, having a protracted battle over the confirmation of a new justice unfold in the middle of an already bitter national election would be the worst thing to happen. Each side has its “litmus” tests, whether it is the overturning of the Supreme Court’s decisions on campaign expenditures and gun control on the left, or its decisions on abortion, same-sex marriage and Obamacare on the right. Nominating and confirming a justice with such litmus tests dominating the process — as they certainly will — would reinforce the impression that the court is indeed a political institution and would damage its reputation, legitimacy and efficacy beyond repair.

President Obama indisputably has the constitutional right to make appointments to the Supreme Court, but only by and with the advice and consent of the Senate. As a full partner in this process, the Senate would be entirely justified — indeed, it would be responsible and prudent — to postpone any consideration of a nomination to fill Justice Scalia’s seat until after the new president, Democrat or Republican, is inaugurated. And this would not be a slight or injury to President Obama, who has already appointed two Supreme Court justices. His term is in its final year, and filling seats on the Supreme Court is not a personal, presidential entitlement. The Senate majority leadership has concluded that postponing the confirmation process is appropriate, and it is perfectly entitled to do so. Having the Supreme Court function for a time with eight members will not destroy the republic, while making any new justice an election year football would gravely damage the court as an institution — an institution that is necessary to the republic’s survival and prosperity.

David B. Rivkin, Jr., and Lee A. Casey served in the U.S. Justice Department under presidents Ronald Reagan and George H.W. Bush.

Source: http://www.usatoday.com/story/opinion/2016/03/16/supreme-court-nomination-merrick-garland-elections-2016-politics-constitution-column/81855264/
Hearings and a vote on Obama's Supreme Court nominee will undermine court's legitimacy.
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Justice Scalia kept constitutional originalism in the conversation — no small legacy

by David B. Rivkin Jr. & Lee A. Casey, in the Los Angeles Times
February 16, 2016 

"I'm Scalia.” That's how Justice Antonin Scalia began to question a nervous lawyer, who was mixing up the names of the nine Supreme Court justices during oral arguments on the controversial 2000 case Bush vs. Gore. His introduction should have been unnecessary, because if any justice dominated the contemporary Supreme Court stage, it was Scalia.

By turns combative, argumentative and thoughtful, Scalia was a stout conservative who transformed American jurisprudence in 34 years on the bench. He was also charming, witty and cordial, able to maintain a close friendship with Justice Ruth Bader Ginsburg, perhaps his leading intellectual rival on the Supreme Court's left wing.

Appointed to the federal appeals court in Washington, D.C., by President Reagan in 1982, Scalia was elevated by Reagan to the Supreme Court in 1986. Scalia was, first and foremost, an “Originalist” — the title of a popular play about the justice that premiered last year in the capital. Scalia was not the first to argue that the Constitution must be applied based on the original meaning of its words — that is, the general, public meaning those words had when that document was drafted, rather than any assumed or secret intent of its framers. He did, however, supply much of the intellectual power behind the movement to reestablish the primacy of the Constitution's actual text in judging.

With Scalia on the bench, academics, lawyers and jurists left, right and center were forced to confront originalist theory, which many had previously dismissed as hopelessly simplistic.

If there was one predominant thread running through Scalia's cases it was a determination, consistent with his originalism, to limit the unelected judiciary's power to the exercise of “merely judgment,” as characterized by Alexander Hamilton in a Federalist Papers passage that Scalia loved to quote. His view of the proper judicial role was driven by his belief that the Constitution assigned judges a modest part to play, both as to the types of issues they could resolve and the instances in which they could overturn choices made by elected officials.

Although the Constitution took disposition of some issues off the political table, Scalia understood that it nevertheless established a republic where on most matters the majority would rule. Individual liberty, he believed, was protected not only by specific guarantees in the Bill of Rights, but also by the system of checks and balances—limitations on the authority vested in government and the structural separation of powers among the three federal branches, as well as between the federal government and the states.

Indeed, Justice Scalia did as much or more to limit the scope of judicial power than any of his predecessors, particularly with respect to “standing” (who might have a sufficient case or controversy to litigate in federal courts), and his insistence that judges could enforce the law only as written, which could never be trumped by personal policy preferences.

It should come as no surprise that Scalia was not a great coalition builder or deal maker, joining only those majority opinions consistent with his guiding principles and dissenting in all other instances. For him, politicking and judging were simply incompatible.

He bristled at the idea that judges were the custodians of a “living Constitution” whose meaning they could change in accordance with “evolving standards.” As Scalia wrote dissenting from the court's 2005 death penalty decision in Roper vs. Simmons: “On the evolving-standards hypothesis, the only legitimate function of this Court is to identify a moral consensus of the American people. By what conceivable warrant can nine lawyers presume to be the authoritative conscience of the Nation?”

Few justices could turn a phrase like Scalia, a talented writer. In one famous example, dissenting from a 1988 opinion upholding the now-defunct Independent Counsel Act, Scalia defended presidential power to control executive branch appointees by noting that “frequently an issue of this sort will come before the Court clad, so to speak, in sheep's clothing.... But this wolf comes as a wolf.”

His pen could also be sharp. Recently, for example, in response to the majority opinion upholding a constitutional right to same-sex marriage, Scalia excoriated his colleagues: “The world does not expect logic and precision in poetry or inspirational pop-philosophy; it demands them in the law. The stuff contained in today's opinion has to diminish this Court's reputation for clear thinking and sober analysis.” Love him or hate him, agree or disagree, no one can say that Scalia ever pulled a punch.

Scalia's ultimate impact on American law will continue to unfold for decades to come, but one thing is certain. Before he joined the Supreme Court, judicial opinions could resolve constitutional issues with little discussion of that document's original meaning. Today, jurists must at least confront it, even if they then resolve the issues based on the Constitution's supposed living character. That is Scalia's achievement, and it is no small thing.

David B. Rivkin Jr. and Lee A. Casey are constitutional lawyers who served in the Justice Department under Presidents Reagan and George H.W. Bush.

Source: http://www.latimes.com/opinion/op-ed/la-oe-0216-rivkin-casey-scalia-legacy-originalism-20160216-story.html
"I'm Scalia.” That's how Justice Antonin Scalia began to question a nervous lawyer, who was mixing up the names of the nine Supreme Court justices during oral arguments on the controversial 2000 case Bush vs. Gore. His introduction should have been unnecessary, because if any justice dominated the contemporary Supreme Court stage, it was Scalia.
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Hillary’s Rationale for Opposing Citizens United Fell Apart in Last Week’s Debate

by DAVID B. RIVKIN JR. & DARIN BARTRAM

February 9, 2016 in the National Review Online

Few politicians have railed more loudly against the Supreme Court’s 2010 key First Amendment decision, Citizens United v. FEC, than the star of the Citizens United–produced political documentary (Hillary: The Movie) that provided the factual basis for the decision. But forget about the kind of independent advocacy at issue in that case or even highly regulated campaign contributions. At last Thursday’s debate against Bernie Sanders, Hillary Clinton grandly asserted that she could not be bought or influenced even by huge amounts of money flowing directly into her own pocket from mega-corporations such as Goldman Sachs. She angrily denied the corrupting influence of money in politics when she is the one cashing the check. Having done that, on what possible basis can Secretary Clinton oppose the kind of independent speech unleashed by Citizens United?

It has become a matter of Democrat orthodoxy that Citizens United has been a disaster, because it enables groups of citizens, including those organized in the corporate form, to freely engage in political speech. To many Democrats, that is tantamount to buying elections and politicians. Secretary Clinton’s opposition to Citizens United is well known and a central plank of her presidential campaign. Just last month, in noting the six-year anniversary of that decision, she accused the Court of having “transformed our politics by allowing corporations to spend unlimited amounts of money to influence elections.”

While slamming the Supreme Court’s decision, Hillary Clinton has pledged something that most presidential candidates shy away from: a litmus test for future Supreme Court nominees if she is elected, to ensure they would vote to overturn Citizens United. She has also endorsed partially repealing the First Amendment to enable the government to restrict political speech for a variety of purposes, including the alleged need to equalize the ability of diverse voices to participate in democratic governance. Presumably, films like Hillary: The Movie wouldn’t make the cut.

The Supreme Court in Citizens United concluded that the First Amendment prohibits the government from restricting independent political advocacy by corporations, labor unions, and associations, because such speech expenditures do not pose a threat of quid pro quo corruption or even the credible appearance of corruption. They simply expand the marketplace of ideas. The decision led to the establishment of super PACs, regulated groups that can receive unlimited donations from individuals and corporations to spend on political and policy advocacy. It also permitted well-established national advocacy groups — whether the National Rifle Association or the Sierra Club — to become energetically engaged in political speech and debates.

It would perhaps be unreasonable to ask Clinton to live under the campaign-finance regulations she claims to favor rather the ones that exist today and under which her Republican opponents operate. (To be sure, Senator Bernie Sanders has managed to nearly match her in the polls notwithstanding his lack of a quasi-official super PAC.) Not surprisingly, Sanders has distinguished himself from Clinton by noting her cozy relationship with Wall Street firms and repeatedly called attention to the huge speaking fees Clinton has received from Goldman Sachs and others, as well as the millions of dollars in campaign and super-PAC contributions from the finance and pharmaceutical sectors that support her candidacy.

At the Thursday debate, Clinton clearly had had enough. She said that Sanders was engaging in a “very artful smear” when he repeatedly highlighted these fees and contributions. She accused him of insinuating that someone who “ever took donations or speaking fees from any interest group has to be bought.” Clinton also very forcefully said, “You will not find that I ever changed a view or a vote because of any donation I ever received.”

By asserting that she can take money from these groups, including honorary fees to spend as she sees fit for personal rather then political benefit, and that she has not been even slightly influenced by all this largess, she has disavowed the corrupting influence of money in politics far beyond anything contained in Citizens United. Money corrupts the typical politician, she seems to be claiming; but she alone is a person of such moral probity that, like Marlow venturing into the jungle in Heart of Darkness, she can escape unchanged — even when companies such as Goldman Sachs are cutting checks to her personal account. Does Clinton honestly believe it would be more corrupting if, rather than paying off Clinton directly, Goldman instead sponsored TV ads in support of her candidacy? Of course not — the very idea is ludicrous.

We will probably never know whether Secretary Clinton’s assertion at the debate of Sanders’s “very artful smear” was rehearsed, or spontaneous. What is beyond doubt is that Secretary Clinton just gutted the basis for her long opposition to the Citizens United decision. 

David B. Rivkin Jr. served at the Department of Justice and the White House Counsel Office during the Reagan and George H. W. Bush administrations. Darin Bartram practices constitutional law in the Washington, D.C., area.

Source: http://www.nationalreview.com/article/431009/hillary-clintons-citizens-united-opposition-hypocrisy-illogic
Goldman Sachs can pay me (that wouldn’t be corrupting), but they shouldn’t cut an ad.
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Time for a Rigorous National Debate About Surveillance

By Mike Pompeo and David B. Rivkin Jr. in the Wall Street Journal
Jan. 3, 2016 4:21 p.m.

America is in a long war against a resilient enemy capable of striking the homeland, but U.S. intelligence capabilities are falling short of meeting the threat. The San Bernardino attackers were not flagged, despite their repeated visits to jihadist websites, alarming posts on social media, and suspicious financial transactions. The Boston Marathon bombers evaded timely detection, as did the would-be shooters in Garland, Texas, who had exchanged dozens of messages with a known terrorist overseas.

Paris and San Bernardino exemplify the two types of threats: overseas-trained terrorists, and online-radicalized lone wolves. Both exhibit distinctive behavioral and communications patterns that can be detected—but only if intelligence agencies have the right data and tools to analyze it.

Yet Washington is blunting its surveillance powers. Collection of phone metadata under the Patriot Act was banned by Congress and finally ceased at the end of November. Collection of the contents of specific targets’ communications under the Foreign Intelligence Surveillance Act has been dumbed down, with onerous requirements to secure the authorizing court order. The intelligence community feels beleaguered and bereft of political support. What’s needed is a fundamental upgrade to America’s surveillance capabilities.

Congress should pass a law re-establishing collection of all metadata, and combining it with publicly available financial and lifestyle information into a comprehensive, searchable database. Legal and bureaucratic impediments to surveillance should be removed. That includes Presidential Policy Directive-28, which bestows privacy rights on foreigners and imposes burdensome requirements to justify data collection.

There has been much debate about whether providers of communications hardware and software in the U.S. should be obliged to give the government backdoor access. Such a mandate would do little good, since terrorists would simply switch to foreign or home-built encryption. New technologies can cloak messages in background noise, rendering them difficult to detect.

Forcing terrorists into encrypted channels, however, impedes their operational effectiveness by constraining the amount of data they can send and complicating transmission protocols, a phenomenon known in military parlance as virtual attrition. Moreover, the use of strong encryption in personal communications may itself be a red flag.

Still, the U.S. must recognize that encryption is bringing the golden age of technology-driven surveillance to a close, which necessitates robust human intelligence. Pursuing every lead on terrorist activity would require a substantial increase in FBI funding and personnel—perhaps double or triple the number of field agents capable of tracking suspects. The Paris attacks, whose perpetrators exchanged numerous unencrypted text messages, were a grim reminder that capable but overstretched security services cannot thwart every terrorist plot.

Congress and the administration should also reassure the intelligence community by reiterating their full support for current surveillance programs. Revitalizing cooperation with foreign intelligence partners, which greatly decreased in the wake of Edward Snowden’s disclosures, is essential. This would require serious dialogue between world leaders and assurances that security has been tightened to prevent similar leaks.

Enhanced congressional oversight—a true partnership between the executive and Congress—is needed. Each month the intelligence community should provide classified briefings to the House and Senate intelligence committees on how surveillance programs are working, what actionable information has been developed, and whether mistakes or abuses have occurred. These briefings should be recorded, and lawmakers should sign an acknowledgment of their attendance. This would bolster accountability and ensure that nobody suffers a memory lapse, such as Nancy Pelosi’s failure to remember that she was extensively briefed on the CIA’s enhanced-interrogation program.

None of this can happen without a rigorous national debate about surveillance, launched by congressional hearings. A review of the post-9/11 surveillance successes and failures needs to be a prominent part of this discourse. Most disagreements on surveillance are about policy, not law: Reasonable warrantless searches are compatible with the Fourth Amendment. So are searches of data shared with third parties, such as social-media posts—a highly valuable surveillance window, since people undergoing radicalization are prone to showcase their zealotry online.

In the wake of 9/11, surveillance reforms were adopted virtually overnight, with little discussion; they did not last. Hence the importance of building enduring public support. Surveillance should feature prominently in the 2016 presidential campaign, giving the next commander in chief a mandate and sense of obligation to implement reforms. Opposition to surveillance has been bipartisan, and the strategy for overcoming it must be bipartisan too.

Assertive efforts to defeat Islamic State will diminish, but not eliminate, the threat. Quick response by law enforcement is vital to limiting casualties and neutralizing attackers but cannot entirely prevent terrorism. Even the best 21st-century surveillance system won’t have a 100% success rate. But robust surveillance, drawing on a variety of technical and human intelligence and backed up by rigorous investigation of all leads, is the best way to mitigate the threat.

Mr. Pompeo, a Republican from Kansas, sits on the House Permanent Select Committee on Intelligence. Mr. Rivkin, a constitutional lawyer, dealt with intelligence oversight while serving in the Justice Department and the White House Counsel’s Office during the Reagan and George H.W. Bush administrations.

Source: http://www.wsj.com/articles/time-for-a-rigorous-national-debate-about-surveillance-1451856106
In The Wall Street Journal, Mike Pompeo and David B. Rivkin Jr. write that it’s time for a rigorous national debate about surveillance and antiterrorism.
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Gun control proposals in the wake of Orlando could endanger constitutional rights

By David B. Rivkin Jr. and Andrew M. Grossman in the Washington Post, June 21, 2016

In the aftermath of horrific terrorist massacres such as the Orlando nightclub shooting, the natural impulse of the American people is to ask what the government can do to prevent such tragedies. Securing public safety is indeed the government’s most important job; keeping guns away from terrorists has obvious value. But this must be done in a way that complies with the Constitution.

This admonition has animated much of the recent debate about the rules governing National Security Agency surveillance of suspected terrorists. Regrettably, it has not been embraced in the gun control debate unfolding in the aftermath of Orlando.

Yet the Constitution’s due process protections are the vital safeguard of individual liberty and mitigate against arbitrary government action by setting the procedures the government must observe when it seeks to deprive an individual of a given substantive right.

Constitutionally “appropriate” procedure varies based on the importance of the right at issue and the risk of an erroneous deprivation of that right, and the government’s interest. For example, while government officials may commit a person who is dangerous to himself or others on an emergency basis, a judicial determination of the validity of the commitment must follow. Law enforcement officers may arrest a person they believe to be guilty of a crime, but the person who has been arrested is entitled to appear before a judge.

Our legal traditions spell out the process that is due for the categories of people currently denied the right to keep and bear arms. Those include felons and those charged with felonies, people adjudged “mentally defective” and those dishonorably discharged from the military. The unifying factor is that people subject to these bars have all received their day in court.

But that’s not the case with the new gun control proposals. One proposal is to block gun sales to those named on the terrorist watch list maintained by the FBI’s Terrorist Screening Center. The list, however, is entirely unsuited to that task.

According to National Counterterrorism Center guidance, agencies can add someone to the list based on a “reasonable suspicion” or “articulable evidence” that the person is a “known or suspected terrorist.” Listings can be based on anything from civilian tips and social-media postings to actual government investigations. The guidance makes clear that “irrefutable evidence or concrete facts are not necessary.”

The predictable result is a very long list, with entries of varying quality. As of July 2014, the main list contained about 800,000 names. More than 40 percent are designated as having “no recognized terrorist group affiliation.” This kind of list may be valuable for prioritizing counterterrorism activities, supporting investigations and determining where additional scrutiny may be warranted, such as with visa applications.

However, the watch list was never intended to be used to punish listed individuals by depriving them of their constitutionally protected rights. And, legally, it is unsuitable for that task. While there is an administrative redress process to remove a name from the list, there is no judicial review, no hearing and not even notification of whether a request was granted or denied, much less the grounds of the decision.

The no-fly list, which contained about 47,000 names in 2013, is subject to the same shortcomings. Individuals are never informed why they’ve been listed and have no opportunity for a hearing before a neutral judge to clear their names. In court filings, the government has explained that the list represents officials’ “predictive judgments” about who may pose a threat. Whatever the merits of that approach as applied to the eligibility for air travel, it falls far short of the kind of concrete proof and procedure necessary to deprive a person of a constitutionally protected right.

Even narrower approaches being bandied about raise similar concerns. For example, an amendment by Sen. Dianne Feinstein (D-Calif.) would authorize the attorney general to block a firearms sale if the attorney general determined that the buyer was engaged in conduct relating to terrorism. The amendment does provide that a frustrated buyer may bring a lawsuit in federal court to challenge a denial. But its text suggests that this is just window dressing: The attorney general may withhold the evidence underlying the denial from the plaintiff, placing the burden on the plaintiff to prove his innocence by rebutting evidence that he’s never seen.

Those agitating for firearms restrictions now should understand that the precedent they set is a dangerous one that extends far beyond the realm of the Second Amendment. If the government’s say-so is sufficient to block a gun sale — thereby abridging a right enumerated in the Constitution, with little or no ability for redress — what right wouldn’t be at risk of arbitrary deprivation, particularly among the powerless?

David B. Rivkin Jr. served in the White House counsel’s office and the Justice Department in the Reagan and George H.W. Bush administrations. Andrew M. Grossman is an adjunct scholar at the Cato Institute. They practice appellate and constitutional law in Washington.

Source: https://www.washingtonpost.com/opinions/gun-control-proposals-in-the-wake-of-orlando-may-endanger-constitutional-rights/2016/06/21/9c79dc88-37d8-11e6-a254-2b336e293a3c_story.html
Those agitating for firearms restrictions could set a dangerous precedent.
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Punishing Climate-Change Skeptics

Some in Washington want to unleash government to harass heretics who don’t accept the ‘consensus.’

By DAVID B. RIVKIN JR. and ANDREW M. GROSSMAN

March 23, 2016 6:29 p.m. in the Wall Street Journal

Galileo Galilei was tried in 1633 for spreading the heretical view that the Earth orbits the sun, convicted by the Roman Catholic Inquisition, and remained under house arrest until his death. Today’s inquisitors seek their quarry’s imprisonment and financial ruin. As the scientific case for a climate-change catastrophe wanes, proponents of big-ticket climate policies are increasingly focused on punishing dissent from an asserted “consensus” view that the only way to address global warming is to restructure society—how it harnesses and uses energy. That we might muddle through a couple degrees’ of global warming over decades or even centuries, without any major disruption, is the new heresy and must be suppressed.

The Climate Inquisition began with Michael Mann ’s 2012 lawsuit against critics of his “hockey stick” research—a holy text to climate alarmists. The suggestion that Prof. Mann’s famous diagram showing rapid recent warming was an artifact of his statistical methods, rather than an accurate representation of historical reality, was too much for the Penn State climatologist and his acolytes to bear.

Among their targets (and our client in his lawsuit) was the Competitive Enterprise Institute, a think tank prominent for its skeptical viewpoint in climate-policy debates. Mr. Mann’s lawsuit seeks to put it, along with National Review magazine, out of business. Four years on, the courts are still pondering the First Amendment values at stake. In the meantime, the lawsuit has had its intended effect, fostering legal uncertainty that chills speech challenging the “consensus” view.

Mr. Mann’s lawsuit divided climate scientists—many of whom recognized that it threatened vital scientific debate—but the climate Inquisition was only getting started. The past year has witnessed even more heavy-handed attempts to enforce alarmist doctrine and stamp out dissent.

Assuming the mantle of Grand Inquisitor is Sen. Sheldon Whitehouse (D., R.I.). Last spring he called on the Justice Department to bring charges against those behind a “coordinated strategy” to spread heterodox views on global warming, including the energy industry, trade associations, “conservative policy institutes” and scientists. Mr. Whitehouse, a former prosecutor, identified as a legal basis for charges that the Racketeer Influenced and Corrupt Organizations Act, or RICO, the federal statute enacted to take down mafia organizations and drug cartels.

In September a group of 20 climate scientists wrote to President Obama and Attorney General Loretta Lynch encouraging them to heed Mr. Whitehouse and launch a RICO investigation targeting climate skeptics. This was necessary since, they claimed, America’s policy response to climate change was currently “insufficient,” because of dissenting views regarding the risks of climate change. Email correspondence subsequently obtained through public-records requests revealed that this letter was also coordinated by Mr. Whitehouse.

Reps. Ted Lieu (D., Calif.) and Mark DeSaulnier (D., Calif.) followed up with a formal request for the Justice Department to launch an investigation, specifically targeting Exxon Mobil for its funding of climate research and policy organizations skeptical of extreme warming claims. Attorney General Lynch announced in testimony this month that the matter had been referred to the FBI “to consider whether or not it meets the criteria for what we could take action on.” Similar investigations are already spearheaded by state attorneys general in California and New York.

Meanwhile, Mr. Whitehouse, joined by Sens. Edward Markey (D., Mass.) and Barbara Boxer (D., Calif.), sent letters to a hundred organizations—from private companies to policy institutes—demanding that they turn over information about funding and research relating to climate issues. In his response to the senators, Cato Institute President John Allison called the effort “an obvious attempt to chill research into and funding of public policy projects you don’t like.”

Intimidation is the point of these efforts. Individual scientists, think tanks and private businesses are no match for the vast powers that government officials determined to stifle dissent are able to wield. An onslaught of investigations—with the risk of lawsuits, prosecution and punishment—is more than most can afford to bear. As a practical reality, defending First Amendment rights in these circumstances requires the resources to take on the government and win—no matter the cost or how long it takes.

It also requires taking on the Climate Inquisition directly. Spurious government investigations, driven by the desire to suppress a particular viewpoint, constitute illegal retaliation against protected speech and, as such, can be checked by the courts, with money damages potentially available against the federal and state perpetrators. If anyone is going to be intimidated, it should be officials who are willing to abuse their powers to target speech with which they disagree.

That is why we are establishing the Free Speech in Science Project to defend the kind of open inquiry and debate that are central to scientific advancement and understanding. The project will fund legal advice and defense to those who need it, while executing an offense to turn the tables on abusive officials. Scientists, policy organizations and others should not have to fear that they will be the next victims of the Climate Inquisition—that they may face punishment and personal ruin for engaging in research and advocating their views.

The principle of the First Amendment, the Supreme Court recognized in Dennis v. United States (1951), is that “speech can rebut speech, propaganda will answer propaganda, free debate of ideas will result in the wisest governmental policies.” For that principle to prevail—in something less than the 350 years it took for the Catholic Church to acknowledge its mistake in persecuting Galileo—the inquisition of those breaking from the climate “consensus” must be stopped.

Messrs. Rivkin and Grossman practice appellate and constitutional litigation in Washington, D.C.

Source: http://www.wsj.com/articles/punishing-climate-change-skeptics-1458772173
David B. Rivkin Jr. and Andrew M. Grossman write that some in Washington want to unleash government to harass heretics who don’t accept the “consensus.”
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Apple, the FBI and free speech

A court order that compels the iPhone-maker to write and then sign new code may violate the First Amendment.

by David B. Rivkin, Jr., and Andrew M. Grossman, in USA Today

February 19, 2016

It would be one thing if Apple could carry out a court order that it unlock an iPhone used by the San Bernardino terrorists simply by waving a magic wand. But encryption isn’t magic; the order requires Apple to write and digitally sign a security-degraded version of its iOS operating system. That raises serious First Amendment concerns because the order amounts to a government-compelled speech.

The FBI picked this fight to set a precedent. For years, it’s been locked in a “crypto war” with Silicon Valley over how to provide law enforcement access to users’ data. So far, Apple, Google, and other companies have rebuffed demands to implement government back doors that defeat encryption and other security measures, arguing that such bypasses weaken security and facilitate abuses by criminals, corporate spies and foreign governments.

Apparently unable to identify a true ticking-time-bomb scenario to bring to court, the FBI settled for the next best thing: obtaining encrypted data off the workplace phone of shooter Syed Farook. The phone’s encryption is keyed to a passcode, and Apple’s software erases data after ten incorrect passcode attempts. So the government, relying on an aggressive reading of the 1789 All Writs Act, obtained an order directing Apple to “bypass or disable the auto-erase function” and make it possible to cycle through all possible passcodes.

While the FBI has previously obtained warrants requiring Apple to extract unencrypted data from devices running older software, this appears to be the first time that it has sought to conscript a company to write new software to circumvent security features. If it prevails, such a precedent will govern future cases.

That makes it all the more important that the courts get the legal principles right this time around. Overlooked so far in this debate is the First Amendment’s prohibition on compelled speech. The Supreme Court has affirmed time and again that the right to free speech includes the right not only decide what to say but also what not to say. Representative cases have upheld the right of parade organizers to bar messages they disapprove and of public employees to refuse to subsidize unions’ political speech.

Computer code can be speech: no less than video games (which the Supreme Court found to be protected), code can convey ideas and even social messages. A new encryption algorithm or mathematical technique, for example, does not lose its character as speech merely because it is expressed in a computer language instead of English prose.

That’s not to say that all code is absolutely protected. But there’s a strong case to be made where code embodies deeply held views on issues of public policy and individual rights -- such as the right to be free from government surveillance. Forcing a person to write code to crack his own software is little different from demanding that he endorse the principle of doing so.

And that leads to the most troubling aspect of the court order: it does, in fact, demand that Apple endorse the government’s views by requiring that it digitally sign the software so that it can run on an iPhone. A signature speaks volumes: agreement, endorsement, trust, obligation. Apple says all those things when it decides to sign a new version of its operating system.

The government can’t force a person to sign a petition and endorse a political view. But that is exactly what it demands here: to compel Apple to endorse a version of its own software that runs precisely counter to its values. At the very least, that is one more reason for a court to reject the government’s aggressive legal position in this case.

David B. Rivkin, Jr., who served in Republican administrations, and Andrew M. Grossman, who is an adjunct scholar of the Cato Institute,, are attorneys at Baker & Hostetler. 

Source: http://www.usatoday.com/story/opinion/2016/02/19/apple--iphone-fbi-san-barnardino-terrorism-free-speech-column/80569422/


A court order that compels the iPhone-maker to write and then sign new code may violate the First Amendment.
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Pulling the Plug on Obama’s Power Plan

By DAVID B. RIVKIN JR. and ANDREW M. GROSSMAN
Feb. 10, 2016 in the Wall Street Journal

President Obama’s Clean Power Plan is dead and will not be resurrected. The cause of death was hubris. As a result, the plan’s intended victims—including the national coal industry, the rule of law and state sovereignty—will live to fight another day.

On Tuesday the Supreme Court put President Obama’s signature climate initiative on hold while a lower court considers challenges brought by industry opponents and 27 states. That stay will remain in effect through the end of Mr. Obama’s presidency, until the Supreme Court has a chance to hear the case—in 2017 at the earliest. The stay sends the strongest possible signal that the court is prepared to strike down the Clean Power Plan on the merits, assuming the next president doesn’t revoke it.

Not since the court blocked President Harry Truman’s seizure of the steel industry has it so severely rebuked a president’s abuse of power.

The dubious legal premise of the Clean Power Plan was that Congress, in an all-but-forgotten 1970s-era provision of the Clean Air Act, had empowered the Environmental Protection Agency to displace the states in regulating power generation. The EPA, in turn, would use that authority to mandate a shift from fossil-fuel-fired plants to renewables. The effect would be to institute by fiat the “cap and trade” scheme for carbon emissions that the Obama administration failed to push through Congress in 2009.

The legal defects inherent in this scheme are legion. For one, in a ruling two years ago the court held that the EPA couldn’t conjure up authority to make “decisions of vast economic and political significance” absent a clear statement from Congress. Thus, the EPA may have the authority to require power plants to operate more efficiently and to install reasonable emissions-reduction technologies. But nothing authorizes the agency to pick winners (solar, wind) and losers (coal) and order generation to be shifted from one to the other, disrupting billion-dollar industries in the process.

The agency also overstepped its legal authority by using a tortured redefinition of “system of emission reduction.” That statutory term has always been taken to give authority to regulate plant-level equipment and practices. Instead the EPA contorted the term to apply to the entire power grid. That redefinition, while necessary for the EPA to mount its attack on traditional power sources, violates the rule that federal statutes must be interpreted, absent a clear indication to the contrary, to maintain the existing balance of power between the federal government and the states. Federal law has long recognized states’ primacy in regulating their electric utilities, the economic aspects of power generation and transmission, and electric reliability.

Worse, the Clean Power Plan commandeers the states and their officials to do the dirty work that the EPA can’t. The agency seeks to phase out coal-fired plants, but it lacks any ability to regulate electric reliability, control how and when plants are run, oversee the planning and construction of new generators and transmission lines, or take any other of the many steps necessary to bring the plan to fruition.

Only the states can do those things, and the plan simply assumes that they will: Because, if they refuse, and the federal government forces coal-plan retirements, the result would be catastrophic, featuring regular blackouts, threats to public health and safety and unprecedented spikes in electricity prices.

The EPA defended this approach before the Supreme Court during legal arguments leading up to Tuesday’s stay order as a “textbook exercise of cooperative federalism.” But the textbook—our Constitution as interpreted by the court in case after case—guarantees that the states can’t be dragooned into administering federal law and implementing federal policy. Their sovereignty and political accountability require that they have the power to decline any federal entreaty. The Clean Power Plan denies them that choice.

No doubt the court was swayed by evidence that the states already are laboring to accommodate the plan’s forced retirement and reduced utilization of massive amounts of generating capacity. Given the years that it takes to bring new capacity online, not even opponents of the plan could afford to wait for the conclusion of judicial review to begin carrying out the EPA’s mandate.

By all appearances, that was the Obama administration’s strategy for forcing the Clean Power Plan, legal warts and all, into effect. After the court ruled last term that the EPA’s rule regulating power plants’ hazardous air emissions was unlawful, the agency bragged that the judgment wouldn’t make a difference because the plants had already been forced to comply or retire during the years of litigation. The Clean Power Plan doubled down on that approach.

It’s one thing for a rule to be unlawful—which happens, and rarely merits a stay—but another for it to be lawless. This one was lawless. That is why the court had to act: to reassert the rule of law over an executive who believes himself above it.

Messrs. Rivkin and Grossman practice appellate and constitutional law in Washington, D.C., and are counsel in the case on behalf of plan challengers. Mr. Rivkin served in the White House Counsel’s Office and the Justice Department in the Reagan and George H.W. Bush administrations.

Source: http://www.wsj.com/articles/pulling-the-plug-on-obamas-power-plan-1455148680
David Rivkin and Andrew Grossman write that by pulling the plug on Obama’s Clean Power Plan, the Supreme Court sent a clear message to the EPA and everyone: The administration’s clean-energy strong-arming campaign must stop.
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Putin’s anti-Obama propaganda is ugly and desperate

By Paula J. Dobriansky and David B. Rivkin Jr. in the Washington Post

January 4, 2016, at 7:13 PM

Although international relations are not conducted under Marquess of Queensberry rules and political satire can be expected from one’s foes, intensely personal attacks on foreign leaders are uncommon except in wartime. While Soviet-era anti-American propaganda could be sharp, it did not employ slurs. But in recent years racist and scatological salvos against foreign leaders have become a staple of official Russian discourse.

Turkish, German and Ukrainian officials are cast as sycophantic stooges of the United States. While slamming Ankara at a December news conference for shooting down a Russian plane that violated Turkish airspace, Russian President Vladimir Putin opined that “the Turks decided to lick the Americans in a certain place.” Sergey Glaziev, a senior adviser to Putin, has called Ukrainian President Petro Poroshenko “a Nazi Frankenstein,” and Deputy Prime Minister Dmitry Rogozin compared Ukrainian Prime Minister Arseniy Yatsenyuk to “a rubber doll from a sex shop.”

The ugliest vilification campaign, however, has been reserved for President Obama. Anti-Obama tweets come openly from government officials. Rogozin, while commenting on Obama’s 2015 State of the Union address, compared Obama to a Tuzik, Russian slang for a pathetic small dog. Irina Rodnina , a well-known Duma member, tweeted doctored images of Barack and Michelle Obama staring longingly at a banana.

Nobody in Russia gets to freelance propaganda-wise. Thus, anti-Obama rants, even when coming from prominent individuals outside government, have Putin’s imprimatur. Russian media personalities, including Dmitry Kiselyov, the host of the widely viewed “News of the Week” TV roundup, often deliver racist slurs, as compiled by Mikhail Klikushin on the Observer Web magazine. Evgeniy Satanovskiy, a Russian academic and frequent guest on Kiselyov’s program, recently also referred to Obama as a “monkey,” prompting derisive laughter and applause from the audience. Meanwhile, the famous nationalist comedian Mikhail Zadornov regularly deploys the term “schmoe” — a slang Russian prison acronym for a person who is so debased he deserves to be defecated upon — alongside Obama’s name. “Obama schmoe” has become ubiquitous enough to be scrawled on the runway of Russia’s Latakia air base in Syria.

Russia’s print and electronic media channels carry stories depicting Obama as lazy and incompetent. Shops sell bumper stickers, posters, T-shirts and cardboard cut-outs with images of Obama as an ape and a chimney sweep. One Russian city held a contest inviting children to kick Obama’s cardboard image. Obama has been burned in effigy on numerous occasions, and zoo animals have been named after him, including a black piglet at the Volgograd zoo.

This despicable onslaught is not just the random venting of a narcissistic Kremlin leader but also an indispensable component of Putin’s efforts to mobilize domestic support for his policies and enhance his standing. The fact that this propaganda campaign is working — Putin and his policies remain popular — is attributable to several factors.

First, the Kremlin controls the news and entertainment media. Journalists who have refused to toe the official line have been fired, jailed or killed. This state monopoly, particularly when combined with the palpable failure by the West to communicate effective rebuttals to Russian audiences, has enabled the regime to mold Russian perceptions on every major policy issue.

Second, these propaganda themes skillfully capitalize on nostalgia felt by the Russian people about Moscow’s imperial past, which is often perceived in a highly idealized light. The repression of the Soviet and Czarist periods has been played down, and a key related theme is that Russia has always been the victim of foreign machinations and intrigue.

But Putin’s propaganda campaign also bespeaks of certain desperation. The Russian economy is in free fall, buffeted by both falling oil prices and Western sanctions. Fuel shortages and the resulting disruption of deliveries of key commodities pose a particular challenge to the Kremlin. Corruption and mismanagement are rampant and have drawn the ire of the Russian people.

There is widespread labor unrest in cities where private-sector workers have not been paid for months at a time. There also have been months of strikes by long-distance truckers protesting extortionist road fees and corruption. Even fire and rescue first responders employed by the federal Ministry of Emergency Situations have not been paid in months. That emergency personnel in such major cities (and places where revolutions have started in Russia’s past) as St. Petersburg and Moscow, with responsibilities for handling public protests, have gone without pay underscores the precariousness of Russia’s finances and the risks it is forced to incur.

Against this backdrop, and lacking either democratic or ideological legitimacy, Putin’s government is increasingly brittle. As the Kremlin doubles down on its aggressive foreign policy and increases domestic repression, it has also intensified its global propaganda efforts. Moscow has heavily invested in its broadcasting assets, with the satellite network RT being the pivotal component, giving it an unprecedented ability to reach domestic and foreign audiences.

All Americans should be outraged by the Kremlin’s messaging campaign and support a robust U.S. response. To present such a response effectively to global audiences, Congress should promptly enact bipartisan legislation proposed by House Foreign Affairs Committee Chairman Edward R. Royce (R-Calif.) and ranking Democrat Eliot L. Engel (N.Y.) to revitalize America’s public diplomacy infrastructure. Winning the global battle of ideas is an essential part of fostering a stable democratic world order. Consistent with our core values, the United States must lead in challenging Moscow’s racist propaganda and highlighting the moral narrative of democracy, tolerance, human rights and rule of law.

Paula J. Dobriansky was undersecretary of state for global affairs from 2001 to 2009 and is a fellow at the Harvard Kennedy School’s Belfer Center for Science and International Affairs. David B. Rivkin Jr. is a constitutional lawyer who served in the Justice Department and the White House under Presidents Ronald Reagan and George H.W. Bush.

Source: https://www.washingtonpost.com/opinions/putins-anti-obama-propaganda-is-ugly-and-desperate/2016/01/04/57647c48-b0c4-11e5-b820-eea4d64be2a1_story.html
It’s time for the United States to speak out against the campaign of personal insults.
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Obama's empty climate agreement

Paris is Copenhagen all over again — more presidential climate change grandstanding without concrete results.

By DAVID B. RIVKIN JR. & ANDREW M. GROSSMAN, 10 December 2015 in USA Today

The world is watching as diplomats in Paris hammer out the final details of a new climate agreement involving over 150 countries. The goal, said President Barack Obama, is “an agreement where ... each nation has the confidence that other nations are meeting their commitments.”

But the world’s attention may be misplaced. There is no reason to believe that this agreement will conclude any differently from the last three, with nations reneging on commitments to drive down greenhouse gas emissions and to provide billions of dollars in foreign aid to finance reductions in the developing world.

That’s a big problem for the president: reciprocity has always been Congress’s chief concern when it comes to climate-related measures that threaten to drive up energy prices and sap the United States’ international competitiveness. The lack of binding commitments for developing nations like China and India is a big part of what killed consideration of one previous agreement, the Kyoto Protocol, in the Senate. And that, as well as general opposition to new greenhouse emissions regulations by congressional Republicans, presages the same result in Congress this time around.

Despite the messaging coming from the White House, as a legal matter, the president actually does need Congress’s support to complete any kind of meaningful deal. That legal reality is having serious consequences in Paris, where U.S. participation in the final deal is an overriding imperative. For one, it rules out any firm financial commitments. The Constitution, after all, assigns the power of the purse to Congress, and so the president cannot, on his own, set the U.S. foreign aid budget for years into the future.

Likewise, the president cannot unilaterally commit the US to binding emission-reduction targets. The Senate and executive branch have both understood for years that any “targets and timetables” for emissions must be put to a ratification vote. When the Senate ratified the United Nations Framework Convention on Climate Change in 1992, it extracted a promise from the George H.W. Bush administration to that effect. And when President Bill Clinton signed the Kyoto Protocol in 1997, it was failure to secure Senate ratification that blocked the U.S. from becoming a party and stopped it from becoming binding under U.S. law. In foreign-affairs law, these are extraordinarily strong precedent for the proposition that any binding reductions must be put to Congress.

The Obama administration’s solution to these seemingly intractable problems is to structure the deal as what it calls a “hybrid agreement.” Under this approach, only measures dealing with emissions reporting would be binding on parties. The rest would constitute what diplomats call “political commitments” — in other words, empty promises that are not legally enforceable. In short, the agreement will contain little in the way of substance.

That is not, however, how it will be touted to the American people. The administration, having identified the Paris agreement as a key plank of the president’s “climate legacy,” has sent a gaggle of senior officials to the negotiations and launched an all-out publicity barrage. The chief focus so far has been on the agreement’s longwinded aspirational language, including the likely-to-be-declared long-term goal of “decarbonisation of the global economy over the course of this century.” But that, like the other “commitments,” will have all the legal force of a fortune cookie message.

For those participating in the Paris talks, there should be a sense of déjà vu. The negotiations over the 2009 Copenhagen Accord marked the Obama administration’s climate-diplomacy debut, and the United States played a lead role in drafting the deal. Its key provisions? Aid payments to to developing nations and “quantified economy-wide emissions targets.” President Obama called it “meaningful and unprecedented breakthrough.” Structured to avoid the need for ratification, the accord was not legally enforceable and quickly came to be viewed, on its own terms, as a complete failure.

One that the president appears determined to repeat in Paris.

David B. Rivkin, Jr., who served in Republican administrations, and Andrew M. Grossman, who previously worked at The Heritage Foundation, are attorneys at Baker & Hostetler. 

Source: http://www.usatoday.com/story/opinion/2015/12/10/paris-climate-change-constitution-treaty-column/76676732/
Paris is Copenhagen all over again — more presidential grandstanding without concrete results.
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Introduction

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: www.DavidRivkin.com

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