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David Rivkin
Works at Baker Hostetler
Attended Georgetown University
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Another Obama Collision with the Constitution

By MICHAEL B. MUKASEY and DAVID B. RIVKIN JR

President Obama last week sent to Congress a draft resolution regarding an authorization for use of military force, or AUMF, against the terrorist group Islamic State. Although presidents have constitutional power to defend American national-security interests, seeking an AUMF is both constitutional and sound. The measure enables Congress to show its support for military efforts and encourages public approval of them. From the nation’s founding, dozens of AUMFs have been enacted. The 2001 resolution authorizing war against al Qaeda and its affiliates and the 2002 authorization of the Iraq war are only the most recent.

AUMFs also have legal significance. They buttress the president’s powers and, consistent with Supreme Court precedent, provide legal support when such aspects of war-fighting as electronic surveillance, detention of enemy combatants and use of deadly force against American nationals who have joined the enemy are challenged in court.

One can argue whether Congress’s constitutional power to declare war serves principally to distinguish formally among enemies, friends and neutrals, or has broader effect. However, AUMFs have become particularly important in the aftermath of the 9/11 terror attacks, as federal courts have involved themselves to an unprecedented degree in scrutinizing such activities. The relevant judicial decisions often cite the existence of an AUMF.

Despite the benefits of traditional AUMFs, President Obama’s proposal is fundamentally flawed. Attempting to obtain political cover for his strategy to fight Islamic State, also known as ISIS or ISIL, he has asked Congress to ban “enduring offensive ground operations” and to terminate the authorization after three years.

Congress cannot restrain the president’s core constitutional authority to wage war, even when congressionally imposed restrictions are minor—as was true with 2001 legislation that purported to limit the president’s authority to place U.S. armed forces under the command of foreign officers as part of U.N. peacekeeping missions. Congress did not bar the president from placing U.S. troops under foreign command, but merely required that certain procedures be followed in such cases. Even so, the Justice Department’s Office of Legal Counsel correctly concluded that “it is unconstitutional for Congress to place conditions, whether substantive or procedural, on the president’s exercise of his constitutional authority as Commander-in-Chief.”

Every president from Richard Nixon on has maintained that the 1973 War Powers Resolution, requiring that the president notify Congress within 60 days of committing U.S. troops abroad, is unconstitutional. Yet each president also has—voluntarily—complied with it. Except President Obama, who directed U.S. military intervention in Libya and claimed that the 1973 law did not apply because the effort was too limited to be called a “war.” Yet now the Obama AUMF purports to impose major constraints on the president’s commander-in-chief authority—both his own, and his successors’.

The Founders were careful to vest responsibility for waging war in a unitary executive, rather than in a multimember legislature. They made the decision based on their historical knowledge that the unity of command is the prerequisite for military success, and on their own experience during the Revolutionary War—which had been managed by committees of the Continental Congress. James Wilson, among the most learned lawyers of the Founding generation, reasoned that, with a unitary executive “[w]e secure vigor. We well know what numerous executives are. We know there is neither vigor, decision nor responsibility in them.”

The Founders also trusted in the power of political accountability, which is why they decisively rejected an executive branch composed of a president and executive council in favor of the unitary executive branch we now enjoy. In Federalist No. 70, Alexander Hamilton observed that political accountability can exist only if the president cannot shift responsibility for his actions onto others: “It often becomes impossible, amid mutual accusations, to determine on whom the blame of punishment of pernicious measures, ought really to fall.” The public, he concluded, would be “left in suspense about the real author” of bad policy.

If Congress were to limit President Obama’s commander-in-chief power by banning what his resolution calls “enduring offensive combat operations”—whatever that means—Congress would effectively operate as an executive council to Mr. Obama, allowing him to evade accountability for his halfhearted prosecution of war against ISIS. It is bad enough that legislation to tie a president’s hands is being proposed by a president. That it is proposed by thispresident, who has been so willing to exceed his constitutional authority in domestic affairs—by rewriting immigration laws, antinarcotics laws, ObamaCare and so on—underscores the administration’s cynicism and its disdain for the Constitution.

If Congress buys into this presidential plan it will set a dangerous precedent that might do lasting damage to the separation of powers. With the two political branches seemingly in accord on joint responsibility for waging war, the federal courts might bless this arrangement, handicapping future presidents.

In recent years, congressional Democrats have been content to accommodate President Obama, whether he chose to enlarge the president’s constitutional prerogatives or diminish them. Congressional Republicans, having chosen to litigate against President Obama when he invaded Congress’s lawmaking authority by rewriting ObamaCare, should display the same principled determination to uphold the president’s constitutional prerogatives. No AUMF is better than one that is constitutionally flawed.

Mr. Mukasey served as U.S. attorney general (2007-09) and as a U.S. district judge for the Southern District of New York (1988-2006). Mr. Rivkin is a constitutional litigator and served in the Justice Department and White House Counsel’s Office in the Reagan and George H.W. Bush administrations.

Source: http://www.wsj.com/articles/michael-b-mukasey-and-david-b-rivkin-jr-another-obama-collision-with-the-constitution-1424391724
In The Wall Street Journal, Michael B. Mukasey and David B. Rivkin Jr. write that President Obama’s proposed authorization for use of military force might do lasting damage to the separation of powers.
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How Congress Can Use Its Leverage on Iran

By DAVID B. RIVKIN JR. And LEE A. CASEY, Jan. 20, 2015

Nuclear talks between Iran and the U.S. recommenced Jan. 14, ahead of full international talks with senior officials from the U.S., U.K., France, Russia, China and Germany two days later. A final agreement is to be reached no later than June 30. Nothing less than Middle Eastern and global security hangs in the balance.

That security depends on verifiable elimination of Iran’s nuclear-weapons and ballistic-missile programs. Unfortunately, the Obama administration is likely to accept a deal leaving in place a substantial Iranian nuclear-weapons infrastructure, including uranium-enrichment capability, long-range ballistic missiles and the ability to deploy a rudimentary nuclear force on short notice. A course correction that only Congress can effect is urgently needed.

It is difficult for Congress to stop a president determined to sign an agreement with foreign leaders. And as this newspaper pointed out in a recent editorial, President Obama has threatened to veto any legislation to impose further sanctions on Iran if the June 30 deadline is not met. Still, Tehran’s insistence that existing U.S. sanctions be lifted as part of a nuclear-weapons agreement gives U.S. lawmakers substantial leverage. The collapse of oil prices, which dealt a heavy blow to the already weakened Iranian economy, has further increased this leverage. Here is what Congress should do:

First, Congress should insist that any Iranian agreement take the form of a treaty. The Constitution requires that treaties be made only with the advice and consent of the Senate. At the time it was adopted, and throughout most of U.S. history, agreements fundamentally ordering the relationship between the U.S. and foreign nations took the form of treaties, not executive orders. A mere executive agreement, which Mr. Obama may use to evade congressional constraints here, would be constitutionally insufficient.

Iran, too, should insist on a treaty and—to ensure sanctions ultimately are lifted—on congressional involvement in the negotiations. Presidents can unilaterally terminate both executive agreements and treaties, but executive agreements carry far less weight. Presidents are more likely to revise or revoke a predecessor’s agreements or orders than they are to repudiate treaties. The Iranians have already made clear that any deal would require their parliament’s approval. It is disconcerting to see Tehran treating its legislative branch with more deference than this U.S. president is treating Congress.

Second, the entire Congress—Senate and House—should be involved. A treaty ratified by the Senate has the force and effect of law. But the current Iranian sanctions regime is so complex—having been created over decades and involving an intricate and tangled web of statutes, executive orders and implementing regulations—that only new legislation can amend or eliminate it in a manner that ensures Iranian compliance.

Presidential orders nullifying specific sanctions, such as enabling U.S. financial institutions to return to business with currently blacklisted Iranian banks, should be unacceptable to the Iranians since such actions could be reversed by President Obama’s successor. Indeed, Tehran has repeatedly expressed concern that the U.S. might not deliver on its sanctions-lifting commitments.

Third, Congress should pass legislation now clearly stating the parameters of an acceptable nuclear deal with Iran, emphasizing the need to eliminate any Iranian breakout capability. It should also put the Iranians and our allies on notice that, absent congressional approval, the president cannot deliver comprehensive and permanent relief from the existing sanctions statutes.

This would prevent the worst possible scenario: Mr. Obama makes unilateral sanctions-related commitments, on which he ultimately cannot deliver. Tehran would thus have a perfect diplomatic cover to continue its nuclear-weapons program, while casting the U.S. as the deal breaker.

The legislation should lift sanctions in stages, as Iran begins to dismantle its nuclear and ballistic-missile programs in a transparent, permanent and verifiable manner, finally complying with its own international obligations. Congress should make clear that failure to submit an agreement as a treaty will lead to the imposition of an even broader and harsher sanctions regime against Iran. The statute should impose these sanctions now, slated to go into effect by a date certain, unless Congress repeals them after reviewing the final deal with Tehran.

These standby sanctions should have no waiver provisions. Given the administration’s willful nonenforcement of other statutes it dislikes, the legislation should enable private parties to bring civil actions against sanction-busting companies and persons. They can be patterned after the private enforcement provisions in the False Claims Act, which allow private citizens to sue on behalf of the federal government.

A genuine and enforceable deal ending Iran’s nuclear programs would give the president and the United States a major foreign-policy triumph. But this is possible only with the full cooperation of Congress, which Mr. Obama needs to treat as a partner and not as an enemy to be ignored, outmaneuvered, stonewalled or steamrolled.

Messrs. Rivkin and Casey served in the Justice Department under Presidents Reagan and George H.W. Bush. They are partners in the Washington, D.C., office of Baker & Hostetler LLP. Mr. Rivkin is also a senior fellow at the Foundation for the Defense of Democracies.

Source: http://www.wsj.com/articles/david-b-rivkin-jr-and-lee-a-casey-how-congress-can-use-its-leverage-on-iran-1421800630
In The Wall Street Journal, David Rivkin and Lee Casey write that absent congressional approval, the president cannot deliver permanent relief from existing Iranian sanctions.
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Federal Antidrug Law Goes Up in Smoke

By DAVID B. RIVKIN JR. And ELIZABETH PRICE FOLEY

Dec. 28, 2014 6:52 p.m. ET

The attorneys general of Nebraska and Oklahoma have asked the Supreme Court to declare unconstitutional Colorado’s law legalizing marijuana. The lawsuit states that, “The Constitution and the federal anti-drug laws do not permit the development of a patchwork of state and local pro-drug policies and licensed-distribution schemes throughout the country which conflict with federal laws.”

Many conservatives have criticized Nebraska and Oklahoma for being “fair-weather federalists” because their claims hinge, in part, on Gonzales v. Raich, a 2005 Supreme Court decision, upholding the broad reach of Congress’s power to regulate commerce.

Conservatives’ ire instead should be directed at the Obama administration’s decision to suspend enforcement of the federal law prohibiting marijuana—a decision so warping the rule of law that the complaining states’ reliance on Raich is justified and necessary.

In 1970 Congress passed the Controlled Substances Act, or CSA, listing marijuana as a Schedule I drug, and thus illegal to manufacture, distribute or possess. Nonetheless, in August 2013 the Obama administration employed its now-signature response to disfavored laws, issuing a memo directing U.S. law enforcement to refrain from using “limited investigative and prosecutorial resources” to pursue marijuana-related violations of the CSA in states that chose to regulate marijuana businesses. The new law-by-memo told states they are free to ignore the federal ban.Read more...

The Controlled Substances Act is an exercise of Congress’s express power to regulate interstate commerce. The law declares that a “major portion of the traffic in controlled substances flows through interstate and foreign commerce” and that even locally grown and sold drugs have a substantial impact on interstate commerce. Drugs manufactured, distributed or consumed within a single state cannot be tolerated because they undermine Congress’s desire to stop interstate drug trafficking.

State laws legalizing and regulating marijuana—in Colorado, Alaska, Oregon and Washington—conflict with the CSA and cripple its effectiveness. States cannot be required to enforce federal law. But as the Supreme Court held in A rizona v. United States (2012), when the federal government doesn’t enforce its own laws, states still “may not pursue policies that undermine federal law.” Colorado’s decision to legalize and regulate the sale of marijuana undermines the Controlled Substances Act, giving a major boost to all segments of that business. Indeed, in an interview this month Colorado’s attorney general, John Suthers, acknowledged that his state is “becoming a major exporter of marijuana.”

Neighboring states such as Nebraska and Oklahoma have seen a significant influx of high-potency marijuana purchased in and directed toward Colorado markets, increasing those states’ law-enforcement costs. If the CSA is a valid federal statute, the U.S. Constitution’s supremacy clause (Article VI, paragraph 2) instructs that conflicting state laws cannot be allowed to stand. This is where Raich comes in.

In Raich, individuals who used marijuana pursuant to California’s “compassionate use” law asserted that the CSA was unconstitutional as it applied to them, because Congress’s power to regulate interstate commerce couldn’t reach state-sanctioned intrastate marijuana use. The Raich majority refused to create a CSA “exemption” for medicinal marijuana, reasoning that “a nationwide exemption for the vast quantity of marijuana . . . locally cultivated for personal use . . . may have a substantial impact on the interstate market for this extraordinarily popular substance.” It concluded that the CSA was a valid exercise of the congressional power to regulate interstate commerce and that “marijuana possession and cultivation ‘in accordance with state law’ cannot serve to place respondents’ activities beyond congressional reach.”

Even the pro-federalism dissent by Justice Sandra Day O’Connor —which asserted that state compassionate-use laws could peacefully coexist with the CSA—acknowledged that medical marijuana was qualitatively distinct from recreational marijuana. More specifically, Justice O’Connor believed that the relatively small population of medical marijuana users didn’t have a “substantial effect” on the interstate market for recreational marijuana—the market Congress intended to extinguish in the Controlled Substances Act.

Whatever one thinks about Raich, it is still binding precedent. Colorado’s law is not about a limited, medical-need exemption for marijuana use. It is a full-scale defiance of the CSA. There is no federalism defense to Colorado’s law, unless one believes that Congress’s power to regulate interstate commerce doesn’t include the power to regulate the buying and selling of marijuana, a commercial market that involves interstate transportation, lures sellers and consumers from other states, and now generates more than $7 million in tax revenue for Colorado every month.

The Controlled Substances Act can be amended or repealed. Congress has taken a step in this direction by providing in its recent omnibus spending bill that the Justice Department cannot use appropriated funds to prevent states from implementing “laws that authorize the use, distribution or cultivation of medicinal marijuana.”

This development may lead the Supreme Court to take another look at the CSA’s constitutionality, something that could occur in the context of the Oklahoma and Nebraska lawsuit against Colorado. Alternatively, Attorney General Eric Holdercould use his authority under the Controlled Substances Act to remove marijuana from Schedule I. But Coloradans—or the citizens of any other state—lack the power in our constitutional regime to enact a law that conflicts with the CSA.

When federal power has been legitimately invoked, states may not go rogue. When they do, sister states that can demonstrate concrete injury are entitled to obtain a court declaration that state laws in conflict with federal law are unconstitutional. Normally such lawsuits wouldn’t be necessary because the federal government would enforce its superior law against rogue states. But these aren’t ordinary constitutional times, and it isn’t “fair-weather federalism” to defend these core constitutional principles.

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

Source: http://www.wsj.com/articles/david-b-rivkin-jr-and-elizabeth-price-foley-federal-antidrug-law-goes-up-in-smoke-1419810742
In The Wall Street Journal, David B. Rivkin Jr. and Elizabeth Price Foley write that Nebraska and Oklahoma, irate about harmful spillover from Colorado’s marijuana legalization, are suing to overturn it.
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Obama Cynically Cut China Deal To Force Energy Price Hikes On U.S Consumers

Whiplash is an occupational risk for those keeping track of President Barack Obama’s muscular exertions of executive power. In just the few weeks since his party’s shellacking in the midterm elections, the president has made major moves on immigration, Internet regulation, and air pollution, just to name a few.

One problem with activist government is that too many actions that merit serious concern and skepticism fall by the wayside. Among them is the president’s announced climate deal with China, which hit front pages a week after the election before sliding into obscurity, overtaken by so many other events. But like the president’s immigration actions, this actually is something new, and more than a little sinister.

A Method to His Double-Dealing Madness

Taken at face value, the deal doesn’t make any sense—at least, not from the United States national-interest perspective. The United States agrees to costly massive cuts in greenhouse gas emissions: 26 to 28 percent below 2005 levels by 2025, far more than the 17-percent cut the president previously targeted. In return, China agrees to…do nothing for 16 years, until 2030. Its emissions won’t increase beyond their level that year, according to the agreement. While this might appear to be a concession, it really isn’t: although emissions are growing at a rapid clip in China today, most projections see them leveling off right around—you guessed it—2030. In other words, this may be the most one-sided deal since the Dutch purchased Manhattan.

But there is a method to what would otherwise seem to be pure madness. As the numbers suggest, the deal has just about nothing to do with China, which will go on its merry way building coal-fired plants to slake its thirst for cheap and secure energy. But it has everything to do with Americans’ continued reliance on coal-generated electricity.

Radically cutting U.S. greenhouse gas emissions has been a central goal for the president since taking office. The centerpiece of this drive was supposed to be a cap-and-trade system, but that was dead on arrival even when Democrats controlled Congress. So the Environmental Protection Agency (EPA) has been dutifully marching forward with a slew of politically-challenged and legally-questionable regulations, from its first wave of permitting requirements for new facilities emitting greenhouse gases (struck down in part by the Supreme Court) to its proposed “performance standards” for new power plants (withdrawn and then re-proposed following legal objections) to its recently-proposed “Clean Power Plan” to cap emissions from existing power plants (already the subject of litigation and withering criticism).

The China Deal Is Smoke and Mirrors

But unilateral action has its risks. If EPA stumbles at all in its roll-out of the Clean Power Plan, that could delay environmentalists’ goal of regulating existing plants for years, particularly if Obama’s successor doesn’t share his priorities. Even if the agency does meet its internal deadlines, there’s still no guarantee the next administration won’t roll back its plans.

This is where the China deal fits in. It provides political cover by creating the appearance—really, the false impression—that the United States isn’t alone in sacrificing economic growth to lower emissions and, in particular, that the president isn’t putting U.S. businesses at a competitive disadvantage to Chinese industry.

There’s also diplomatic cover, in that the next president will be at least hesitant to walk away from an international agreement, binding or not. Much diplomacy is conducted informally, and, all else being equal, nations and their leaders do well to keep their word.

And there’s a measure of legal cover. To be sure, an executive agreement like this one is not legally binding—a treaty, after all, has to be ratified by the Senate, which the president knows is politically impossible. But the courts are generally more deferential to policy decisions that have foreign-policy consequences, given the president’s unique competence and authority in that area. Expect our bilateral “obligations” to China to occupy a place of prominence in legal briefs defending the Clean Power Plan, which is conveniently referenced in the U.S.-China executive agreement, from the legal challenges that are sure to follow its introduction.

Will the Courts Care?

Savvy as it may be, the China deal is also remarkably cynical and has the air of being too-clever-by-half. Lacking the power to simply change domestic laws—well, at least until recently—President Obama is attempting a partial end-run through the exercise of his potent but carefully circumscribed foreign-policy powers. There’s absolutely no reason the deal had to be with China; the Seychelles or Tonga would have worked just as well.

This treads a bit too close to Justice Scalia’s concern, expressed in a treaty-power decision last year, that the Obama administration’s position was a recipe for circumventing the Constitution’s limitations on federal power. Under an unbounded treaty power, he explained, “negotiating a treaty with Latvia providing that neither sovereign would permit the carrying of guns near schools” would be sufficient to resuscitate the statute prohibiting the carrying of firearms near schools that the Courtpreviously struck down for exceeding Congress’s enumerated powers. Notably, at oral argument, Solicitor General Donald Verilli said it was simply “unimaginable” that the president or Congress would abuse foreign-policy powers to aggrandize their own authority in domestic affairs.

And yet. Remember when it was unimaginable that the president would act unilaterally to alter the legal status of millions of immigrants?

As with the president’s immigration actions, the creative repurposing of executive power that underlies the China deal will have unexpected consequences. If international agreements become just another tool of domestic policy, subject to reconsideration every four or eight years, will it diminish the standing of our word among nations? Or will it ossify U.S. domestic policy, as policy choices are taken off the table to comply with existing agreements?

The key question is whether Congress and the courts will recognize the China deal for what it is—a cynical exercise of bogus internationalism directed entirely at domestic affairs—and treat it accordingly.

Messers. Rivkin and Grossman practice law, with a particular focus on constitutional litigation, at BakerHostetler in Washington DC. Rivkin served at the Justice Department and the White House counsel’s office under presidents Reagan and George H.W. Bush.

Source: http://thefederalist.com/2014/12/03/obama-cynically-cut-china-deal-to-force-energy-price-hikes-on-u-s-consumers/
President Obama’s little-noticed greenhouse-gas emissions agreement with China may be the most one-sided deal since the Dutch purchased Manhattan.
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Let the President Decide on Jerusalem

By DAVID B. RIVKIN JR. and LEE A. CASEY

Since the 1990s, Congress has maintained that Jerusalem should be recognized as Israel’s capital. Since Israel’s founding in 1948, presidents have stated that Jerusalem’s status can only be decided as part of a broader peace settlement. On Monday this dispute again reached the Supreme Court, and it offers the justices a unique opportunity to elucidate the proper way to resolve separation-of-power disputes between Congress and the executive.

Zivotofsky v. Kerry involves Menachem Zivotofsky, a 12-year-old Jerusalem-born American citizen. His parents want Israel identified as his birthplace on his passport. Section 214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003, permits this choice, but the secretary of state refused to comply, listing Jerusalem alone as his place of birth. The secretary argues that the law violates established U.S. foreign policy and interferes with the president’s exclusive power to recognize foreign states and their territorial extent.

In the first round of this litigation, the U.S. Court of Appeals for the District of Columbia concluded that this contest presented a political question that the courts could not answer. The Supreme Court reversed that decision, explaining that however “political” the circumstances, the question was a straightforward one of constitutional law suitable for judicial resolution.

The D.C. Circuit reheard the case last year and concluded that section 214(d) is unconstitutional because the president has the exclusive authority to determine the territorial boundaries of foreign states, their capitals and their governments—at least for purposes of U.S. diplomatic intercourse.

This authority is based in clear constitutional text that gives the president the power “to receive Ambassadors and other public Ministers.” Although the court found this language ambiguous (relying instead on historical practice and Supreme Court statements that the president alone has the power to recognize a foreign state as sovereign), the framers used this language precisely and to a purpose.

In their time, as today, the purpose of “receiving” an ambassador was not chitchat. It was a solemn act through which one head of state—usually through acceptance of “credentials” or “letters of credence”—recognizes the legitimacy of a foreign ambassador’s government—the right of his or her opposite number to send and accredit diplomatic representatives.

The critical nature of “receiving” is why, for example, the first American representatives sent to France in 1776 were not “received” by King Louis XVI until the colonies showed they had some chance of success in their war for independence from Britain by winning the battle of Saratoga in 1777. “Receiving” the Americans as diplomats inherently involved France’s recognition of the new country. By contrast, as noted by Emmerich de Vattel in his highly influential 18th-century treatise, “The Law of Nations,” refusing to receive diplomats does a state “a very great injury; it is contesting its sovereign dignity.”

That said, Congress is not powerless. Passports are both diplomatic communications and government documents, and Congress clearly has some constitutional authority to regulate their content—including its powers to regulate foreign commerce, control naturalization, and prescribe rules by which government agencies and departments operate.

Unlike many other separation-of-power cases, the Supreme Court is not presented here with a situation in which one of the political branches is acting outside its authority. Congress and the president are both exercising legitimate constitutional powers, but in a manner that produces conflicting results. As in other areas where competing constitutional imperatives conflict, the court should use a balancing test, which measures the extent of harm suffered by each political branch.

The president prevails when the harms in Zivotofsky are balanced. A law declaring Jerusalem a part of Israel on U.S. passports severely undercuts the president’s exclusive power to recognize other sovereign nations, manifesting that the U.S. position is muddled. By contrast, if Congress is denied this power, the harm it suffers is small, as Congress remains free to regulate many other passport details, such as size, shape, color, or requiring that passages from the Declaration of Independence or Constitution be included.

Some have suggested (including Justice Anthony Kennedy during oral argument) that the branches’ interests can be harmonized by having the president add passport language, disclaiming that the “Jerusalem, Israel” reference denotes formal U.S. recognition of Jerusalem as Israel’s capital. But such a disclaimer accomplishes nothing, giving neither Congress nor the president any solace. And the conveyance of a unified national position on Jerusalem’s status would remain in doubt, potentially undermining the president’s ability to negotiate Middle Eastern peace.

Zivotofsky presents an important opportunity for the Supreme Court to recognize that, when the two political branches clash over lawful but conflicting powers, balancing harms and harmonizing interests is the proper constitutional path.

Messrs. Rivkin and Casey, partners at the firm Baker Hostetler LLP, served in the White House Counsel’s Office and the Justice Department in the Reagan and George H.W. Bush administrations.

Source: http://online.wsj.com/articles/david-b-rivkin-jr-and-lee-a-casey-let-the-president-decide-on-jerusalem-1415319014
In The Wall Street Journal, David B. Rivkin Jr. and Lee A. Casey say that the Supreme Court is asked to weigh in on the matter of a child’s birthplace, a passport and U.S. policy on Israel.
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The Case for Suing the President

Rewriting ObamaCare laws on the fly is a violation of the constitutionally mandated separation of powers.

By David B. Rivkin Jr. &  Elizabeth Price Foley, July 31

‘So sue me” is President Obama’s message to Congress. And on Wednesday the House of Representatives took up his taunt, authorizing a lawsuit to challenge the president’s failure to faithfully execute provisions of the Affordable Care Act as passed by Congress. The House lawsuit is no “stunt,” as Mr. Obama has characterized it. The lawsuit is necessary to protect the Constitution’s separation of powers, a core means of protecting individual liberty. Without a judicial check on unbounded executive power to suspend the law, this president and all who follow him will have a powerful new weapon to destroy political accountability and democracy itself.

Article I of the Constitution vests all legislative power in Congress. Article II imposes a duty on the president to “take care that the laws be faithfully executed.” When a law is unambiguous, the president cannot rewrite it to suit his own preferences. “The power of executing the laws,” as the Supreme Court emphasized in June, “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 is Congress’s business.

These barriers between the branches are not formalities—they were designed to prevent the accumulation of excessive power in one branch. As the Supreme Court explained in s (1992), the “Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.”

The barriers also reflect the Framers’ belief that some powers are better suited for a particular branch of government because of its institutional characteristics.

Congress has the exclusive authority to make law because lawmaking requires pluralism, debate and compromise, the essence of representative government. If Congress cannot achieve consensus, that doesn’t mean Congress is “broken.” A divided Congress reflects a divided people. Until there is a compromise acceptable to the majority, the status quo is the only correct path. An impasse emphatically does not warrant a president’s bypassing Congress with a pen and phone, as Mr. Obama claimed the power to do early this year.

The separation of powers also guarantees political accountability. When Congress makes a law and the president executes it as written, citizens will know whom to reward or punish at the next election.

A president who unilaterally rewrites a bad or unworkable law, however, prevents the American people from knowing whether Congress should be praised or condemned for passing it. Such unconstitutional actions can be used to avert electoral pain for the president and his allies.

If Mr. Obama can get away with this, his successors will be tempted to follow suit. A Republican president, for example, might unilaterally get the Internal Revenue Service to waive collection of the capital-gains tax. Congress will be bypassed, rendering it increasingly irrelevant, and disfranchising the American people.

Over time, the Supreme Court has come to recognize that preserving the constitutional separation of powers between the branches of government at the federal level, and between the states and the federal government, is among the judiciary’s highest duties.

In (1985), the court was asked whether the wage and hour provisions of federal labor law could be imposed on states as employers. The justices refused to examine the substance of the states’ claim, declaring that the so-called vertical separation of powers—federalism—was “more properly protected by procedural safeguards inherent in the structure of the federal system than by judicially created limitations on federal power.” Because members of Congress are elected on a state-by-state basis, the court thought the national political process itself was the more proper way to protect states’ rights against federal encroachment. It was a mistake the court would quickly regret.

Seven years later, in (1992), the Supreme Court did an about-face, acknowledging that the political-remedies process alone could not safeguard the separation of powers, and invalidated a federal law that forced states to “take title” to low-level radioactive waste. The court abandoned the “hands off” position of because if it did not do so, the federal government could coerce states to do the federal government’s bidding—a power that could have severely undermined the federalist structure of the Constitution, and hence, political accountability.

Litigation in federal court is an indispensable way to protect all branches of government against encroachment on their authority. States have successfully sued to stop federal intrusions into their constitutionally reserved powers. State legislators have also successfully sued to protect their institutional authority when state executives nullified their legislative power.

The executive branch is no different. President Obama has repeatedly resorted to litigation to vindicate the executive branch’s constitutional prerogatives. His administration has routinely sued states for violating federal laws, in cases such as (2012), involving the constitutionality of a state law dealing with illegal immigration.

And the Supreme Court has declared unconstitutional portions of congressional statutes that encroached on the federal judiciary’s power. In (1982), the court invalidated a transfer of judicial power to “judges” in bankruptcy cases who were not part of the regular federal judiciary and were exercising powers conferred by Congress, rather than by the Constitution.

Congress is not an institutional orphan. Like the president and the states, it can rightfully expect courts to enforce its institutional authority. Any other result would establish an anomalous loophole preventing Congress, and Congress alone, from vindicating its constitutional prerogatives. Courts would not countenance such a lapse in the constitutional architecture, with the potential to inflict enormous damage to the separation of powers, political accountability and individual liberty.

The problem will be cured once the judiciary declares unconstitutional the president’s unilateral suspension of Affordable Care Act provisions and vacates the executive branch measures through which these suspensions were effected.

Source: http://online.wsj.com/articles/david-b-rivkin-jr-and-elizabeth-price-foley-the-case-for-suing-the-president-1406761584

David Rivkin, a partner at the firm Baker Hostetler LLP, served in the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Elizabeth 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 say that rewriting ObamaCare laws on the fly is a violation of the constitutionally mandated separation of powers.
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Nevada's Right Choice on Immigration

By DAVID B. RIVKIN JR. And LEE A. CASEY, Feb. 2, 2015 7:40 p.m. ET

A very public dispute broke out last week when Nevada Attorney General Adam Laxalt went against Gov. Brian Sandoval’s wishes and joined a lawsuit filed by 25 other states challenging President Obama’s imposition of his immigration reform policies by executive action.

Messrs. Sandoval and Laxalt are both Republicans who agree that the current immigration system is broken and that comprehensive reform is necessary. But Mr. Sandoval opposes litigation and has suggested that new immigration reform legislation is the best way to proceed.

Yet on Jan. 26 Mr. Laxalt announced that Nevada had joined the plaintiff states in Texas v. United States of America. “As Nevada’s chief legal officer,” he explained, “I am directed by Nevada’s Constitution and laws to take legal action whenever necessary ‘to protect and secure the interest of the state.’ ”

Mr. Laxalt was right to join the suit. Mr. Sandoval’s legislative path will neither solve America’s vexing immigration problems nor rein in a president who has ignored the Constitution’s limits on executive power.

Texas v. United States of America challenges the president’s use of an executive order to suspend federal immigration laws that require, among other things, deportation of undocumented immigrants and strict limits on who may lawfully work in the U.S. The Constitution requires that the president “Take care that the laws be faithfully executed,” and provides no exemption for laws with which the president disagrees.

As the Supreme Court stated in Youngstown Sheet & Tube Co. v. Sawyer (1952), ruling against President Harry Truman’s seizure of the nation’s steel industry during the Korean War, “the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.”

The president is, in other words, stuck with laws passed by Congress and signed into law by previous presidents. The reason for this is at the heart of America’s constitutional separation of powers—the power to make laws and to execute them are divided between separate branches of government, Congress and the president respectively.

The third branch—the judiciary—has the power to say what the law is, including when the president and or Congress have crossed the constitutional lines. It is only litigation before the courts that can now vindicate the most basic tenets of our constitutional system.

However desirable immigration reform might be, congressional action won’t prevent this president from ignoring provisions in a new law that he dislikes or opposes. Only a determination by the courts that he has overstepped his constitutional authority can do that. Unless the president’s ability to play lawmaker is decisively defeated in litigation, congressional legislation on any contentious public-policy issue would be inherently futile.

Nor is Mr. Laxalt obliged to follow Gov. Sandoval’s preference. Nevada law permits the governor to direct the attorney general to bring or defend an action in the courts. But as Mr. Laxalt explained, it also imposes an entirely independent obligation on the attorney general to take such action if he believes it necessary to secure the state’s interests.

All American states, including Nevada, have critical interests at stake here, both because of the burdens President Obama’s suspension of federal immigration law imposes on their state budgets and governments, but also because of their basic character as coequal sovereigns. The Constitution is a “grand bargain” among the states and the American people. That bargain includes a powerful federal government, but one that has limited powers that may be exercised only in accordance with the institutional arrangements the Constitution creates.

The separation of legislative and executive authority is among the most important limitations on federal power. It is now up to the federal courts to restore the Constitution’s balance between the president and Congress and between the federal government and the states. Mr. Laxalt made the right choice. Those state attorneys general that have yet to join Texas v. United States of America should follow his lead.

Messrs. Rivkin and Casey practice law in Washington, D.C., and served in the White House and Justice Department during the Ronald Reagan and George H.W. Bush administrations.

Source: http://www.wsj.com/articles/david-rivkin-and-lee-casey-nevadas-right-choice-on-immigration-1422924012
In The Wall Street Journal, David B. Rivkin Jr. and Lee A. Casey write that Obama’s disregard for federal law makes it imperative that states join the suit against him.
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Judicial candidates face loss of free speech rights

David B. Rivkin Jr., and Andrew M. Grossman, January 18, 2015

For years, those who favor restrictions on campaign spending have insisted that their real interest lies in fighting corruption, not limiting political speech. Well, here's a free-speech litmus test: Can a state block candidates from asking for campaign contributions that are themselves legal?

That's the issue the Supreme Court will face Tuesday in Williams-Yulee v. The Florida Bar. Like most states, Florida elects or retains judges by popular vote. Many of those states prohibit judicial candidates from personally soliciting campaign contributions. This restriction, supporters say, prevents corruption, bias and the appearance of bias.

It's hard to see how. Florida's law allows contributions of up to $1,000 to judicial campaigns, and that limit cannot be significantly lowered (much less banned) without violating the First Amendment. Florida's law allows judicial candidates to learn who their contributors are and to ask for other kinds of campaign support, including volunteer work and service on their campaign committees.

But a judicial candidate cannot post a request for support on the campaign website, cannot appear before a local civic group to request contributions, and cannot sign a fundraising letter asking for support. In other words, a candidate can accept contributions, just cannot solicit them. But solicitation is just speech.

That last restriction is the one that bit Lanell Williams-Yulee, a public defender and first-time candidate seeking election to a county court. She made the mistake of signing a letter announcing her candidacy and asking friends to contribute whatever they could. For that, she was reprimanded and fined by the Florida Supreme Court.

Like most campaign-finance restrictions, the speech ban on solicitation places another burden on challengers running for office — particularly those who lack the wealth to finance their own campaigns.

Even if Williams-Yulee had been elected, what would have been the harm of her asking for contributions?

Quid-pro-quo arrangements are already illegal. It is also illegal to fail to disclose contributions, so there's no possibility of under-the-table dealing. And the Supreme Court has recognized that large expenditures in a judicial election — even if they're made independently, without any contribution to a campaign — can create an appearance of bias that requires a judge to recuse herself in cases involving the spender.

So the Florida law's sole purpose is to ban certain political speech. That's something to keep in mind the next time self-appointed campaign-finance reformers — whose legal briefs unanimously support the Florida law — tell us that their proposed restriction won't impact our First Amendment freedoms.

David B. Rivkin Jr., and Andrew M. Grossman practice appellate and constitutional law at the Washington, D.C., office of Baker & Hostetler LLP.

Source: http://www.usatoday.com/story/opinion/2015/01/18/judicial-candidates-supreme-court-voters-elections-free-speech-rights-column/21962653/
Supreme Court will hear campaign fundraising case.
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Winning civil justice for Michael Brown and Eric Garner

By David B. Rivkin Jr. and Andrew Grossman 

The quest for justice for Michael Brown and Eric Garner did not end with the decisions of grand juries not to indict the police officers whose actions led to those men’s deaths. Those frustrated by the grand juries’ dispositions can take comfort in knowing that victims of police violence, as well as their families, can get their day in court.

The family of Garner, who died after being placed in an apparent chokehold by a New York police officer, has already announced plans to sue the officer and the city for $75 million. Michael Brown’s family has not yet said whether they intend to bring a lawsuit against former Ferguson, Mo., police officer Darren Wilson or the city, but their lawyer has indicated the possibility is being considered.

These suits may succeed where criminal charges failed. To protect against wrongful conviction, criminal charges must be proved “beyond a reasonable doubt,” the highest standard in law. By contrast, civil plaintiffs need convince a jury only that their claims are supported by a “preponderance of the evidence” — a hair more than 50 percent.

Both families could bring claims for wrongful death, arguing that the officers failed to exercise appropriate care in the confrontations that resulted in the deaths of their family members. Such a claim by Garner’s family would be particularly strong, given that the New York Police Department long ago banned chokeholds precisely to prevent choking-related deaths. As for Brown, the circumstances of his death are less clear at this time, but a trial would provide an opportunity for all the facts to come out. If the “hands-up-don’t-shoot” narrative is correct, the Brown family should be able to prevail.

And unlike a criminal trial, civil litigation can reach beyond the boundaries of a particular case to bring about broader change. Federal law authorizes claims — which can be brought in state or federal court — for violations of constitutional rights by state officials. Such claims can target both individual officers and, where plaintiffs can show that their injuries are the result of an official policy or practice, the municipality itself.

The most obvious civil rights claim in each case would be for the use of excessive force; courts have ruled that the use of force must be “objectively reasonable” under the Fourth Amendment. Such claims are heavily fact-dependent, turning on — in the Supreme Court’s formulation — “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” The video of Garner’s death appears to speak directly to these factors: The suspected crime was minor, his threat nonexistent and his actions reflecting frustration with police harassment more than flight or resistance. Again, the evidence concerning Brown’s death is less conclusive.

Both families could also bring claims challenging alleged racial profiling. Typically, such claims argue that a police stop was taken without the reasonable suspicion of criminality required by the Fourth Amendment and was based on race, in violation of the equal protection clause. Profiling claims can be difficult to prove, due to the light burden the law imposes on police officers to justify a brief stop. The officers involved in these cases have already offered reasons for stopping Brown and Garner — walking in the street and selling contraband cigarettes, respectively — that may be sufficient to defeat a profiling claim.

Still, such civil-rights claims could be a powerful way to force changes in policing in Ferguson and New York. Even if the cities themselves are not named as defendants, a finding of liability against an officer would put officials on notice that failure to prevent future abuses will have serious consequences.

Failure to appreciate the important remedies offered by civil law may lead some to draw the wrong lesson from the tragedies in Ferguson and Staten Island: that the protections for those accused of crimes are too strong. But safeguards such as grand juries provide, as the great Justice Joseph Story explained long ago, “security to the citizens against vindictive prosecutions, either by the government, or by political partisans, or by private enemies.” Weakening that security would only further disadvantage communities that already feel they are unfairly targeted by police and prosecutors. If anything, reform should strengthen grand juries for all those accused of crimes to restore what once was a vital check on the power of prosecutors and a protection against the enormous burden of a wrongful indictment.

The mistake on both sides is to assume that victims of crime are entitled to punishment of those they believe are responsible. It is society that is entitled to punish the provably guilty. Criminal prosecution is therefore a poor fit where evidence of guilt is ambiguous or equivocal — as is often the case involving confrontations with police.

What victims are entitled to is compensation for their injuries through civil litigation. That’s why the grand juries’ decisions are not the end of the story for determining police culpability for the deaths of Michael Brown and Eric Garner.


David B. Rivkin Jr. and Andrew Grossman specialize in constitutional litigation at the firm Baker Hostetler LLP.

Source: http://www.washingtonpost.com/opinions/winning-civil-justice-for-michael-brown-and-eric-garner/2014/12/12/01ab521e-815d-11e4-9f38-95a187e4c1f7_story.html
Claims could be a way to force changes in Ferguson, New York.
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Obama's Immigration Enablers

By DAVID B. RIVKIN JR. And ELIZABETH PRICE FOLEY

A few hours before announcing his new immigration policy, President Obama received an opinion blessing its legality from the Office of Legal Counsel. Regrettably, the OLC’s made-to-order legal analysis is shockingly flawed in five major respects.

First, the OLC justified the policy as a prioritization of government’s “limited resources.” But the executive order does more than prioritize. It rewrites existing law. Illegal immigrants won’t be deported if they aren’t a threat to national security, public safety or border security. Beyond these three categories, deportation may be pursued only if it serves an “important federal interest.”

Under current law, by contrast, anyone entering the U.S. illegally is a “deportable alien” who “shall, upon the order of the Attorney General, be removed.” The president’s policy transforms an entire category of aliens deemed deportable into two different categories, whereby some are deportable and some aren’t. This is a shift in kind, not merely degree.

A president prioritizing resources would do what previous presidents have done: enforce the entirety of immigration law, while allowing prosecutors to make case-by-case determinations. By announcing a global policy of nonenforcement against certain categories, Mr. Obama condones unlawful behavior, weakening the law’s deterrent impact, and allows lawbreakers to remain without fear of deportation. As he puts it, “All we’re saying is we are not going to deport you.” These individuals are no longer deportable, although Congress has declared them so.

Second, the OLC incorrectly concludes that the president’s plan involves case-by-case scrutiny. The OLC admits “a general policy of nonenforcement that forecloses the exercise of case-by-case discretion poses ‘special risks’ that the agency has exceeded the bounds of its enforcement discretion.” It argues, however, that there are no “removable aliens whose removal may not be pursued under any circumstances.” And although the policy “limits the discretion of immigration officials . . . it does not eliminate that discretion entirely.”

It is absurd to assert that the theoretical possibility that a small percentage of the more than four million likely applicants may be rejected is meaningful “prosecutorial discretion.” This is illustrated by Mr. Obama’s 2012 Deferred Action for Childhood Arrivals policy. Of 521,815 applications considered on a “case-by-case” basis, only 3% have been rejected. With an approval rate of 97%, the president’s criteria are rubber-stamped. This is a categorical exemption from the law.

Third, even if Mr. Obama’s plan is accepted as case-by-case discretion, it creates a remedy—deferred deportation—for a category that Congress hasn’t allowed and the president lacks authority to create. The OLC memo lumps deferred deportation with other kinds of deportation relief, such as parole, temporary protected status and deferred enforced departure. But each of these has been specifically authorized by Congress, or—in the case of deferred enforced departure—is supported by the president’s foreign-affairs power.

While Congress has authorized deferred deportation for specific categories, lawmakers haven’t authorized it for those to whom President Obama wishes to extend it—the parents of U.S. citizens and lawful permanent residents. The OLC claims that this isn’t important because deferred deportation “has become a regular feature of the immigration removal system that has been acknowledged by both Congress and the Supreme Court.” It cites the 1999 Reno v. American-Arab Anti-Discrimination Committee case.

In that case, members of the Palestinian Liberation Front claimed the Immigration and Naturalization Service’s refusal to defer their deportation constituted discrimination. The court disagreed, ruling that a recently passed statute was “clearly designed to give some measure of protection to ‘no deferred action’ decisions” and deny adjudication of such discrimination claims. The ruling merely acknowledged that Congress didn’t want federal courts hearing discrimination lawsuits based on a failure to grant deferred action. It didn’t consider or endorse the legality of deferred deportation.

The OLC next claims that Congress has “acquiesced” to deferred deportation. It cites statutes authorizing deferred deportation for battered spouses of U.S. citizens, and instances where individuals entitled to visas—such as victims of human trafficking or college students affected by Hurricane Katrina—needed more time to obtain visas or fulfill the visa’s purpose. Congress’s authorization of deferred deportation for narrow categories doesn’t allow a president to create broad new categories, particularly since his deferred deportation creates entitlement to benefits such as work permits, and because the category of aliens created by President Obama’s policy weren’t entitled to stay.

Fourth, the OLC claims that past presidents have taken similar actions, yet it fundamentally misrepresents their legal basis. The primary example is George H.W. Bush ’s 1990 Family Fairness Policy (FFP), which affected an estimated 1.5 million children and spouses of those granted amnesty by the 1986 Immigration Reform and Control Act.

The FFP, however, was consonant with existing statutes. The FFP granted not deferred deportation, but “voluntary departure” for up to one year. Voluntary departure allows deportable individuals to voluntarily depart the country, on their own dime, in lieu of being forcibly removed. Their status as “deportable” individuals never changes.

The FFP was grounded in the then-existing voluntary-departure statute, which stated, “The Attorney General may, in his discretion, permit any alien under deportation proceedings . . . to depart voluntarily from the United States at his own expense in lieu of deportation.” The FFP didn’t contradict existing law or attempt to recategorize deportable aliens.

Fifth, the OLC ignores that the new Obama policy profoundly harms the states, which bear the costs of educating and providing health care to millions of illegal immigrants now allowed to remain. The policy also injures state sovereignty.

In Arizona v. U.S., the Supreme Court ruled in 2012 that federal immigration law pre-empts much of state power over immigration. But when a president unilaterally acts, it deprives states of their police power and representation in Congress, imposing changes without democratic deliberation. While federal immigration law can pre-empt state power, there can be no pre-emption when a president exceeds his constitutional authority by rewriting the law.

The OLC’s memo endorses a view of presidential power that has never been advanced by even the boldest presidential advocates. If this view holds, future presidents can unilaterally gut tax, environmental, labor or securities laws by enforcing only those portions with which they agree. This is a dangerous precedent that cannot be allowed to stand.

Source: http://online.wsj.com/articles/david-rivkin-and-elizabeth-price-foley-obamas-immigration-enablers-1416872973

Mr. Rivkin is a constitutional litigator and served in the Justice Department and White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Ms. Foley is a constitutional law professor at the Florida International University College of Law.
David Rivkin and Elizabeth Price Foley write in The Wall Street Journal that the Obama administration’s Office of Legal Counsel endorsed a view of executive power never imagined by the Founders.
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YOU'RE A CONTRACTOR? POLITICAL CONTRIBUTIONS NOT ALLOWED

By DAVID B. RIVKIN JR. And ELIZABETH PRICE FOLEY

Law professor Wendy Wagner’s scholarship at the University of Texas captured the attention of the U.S. government, which contracted with her to analyze how federal agencies can better use science in decision making. Unfortunately for Ms. Wagner, her federal contract means that she cannot contribute to any political party, committee or candidate for federal office. So in 2011 she went to court, asserting that the 74-year-old ban on contractor contributions is unconstitutional.

On Sept. 30, the full U.S. Court of Appeals for the D.C. Circuit heard arguments in Wagner v. FEC. The case provides a much-needed opportunity for the courts to demand strong justification for laws curtailing political speech.

The question in Ms. Wagner’s case is whether the ban on contractor contributions furthers the government’s interest in preventing quid-pro-quo corruption—meaning an exchange of dollars for political favors. This is the only interest considered sufficient to justify limits on political contributions, consistent with the First Amendment, under the Supreme Court’s 2010 decision in Citizens United v. FEC, and the D.C. Circuit’s own precedent that year in SpeechNow.org v. FEC.

The government contends that banning contractor contributions prevents quid-pro-quo corruption because if contractors could make donations, candidates might return the favor by helping secure a federal contract. The ban’s genesis lies in the Works Progress Administration scandal of the late 1930s, wherein WPA employees and contractors were strong-armed into making contributions to Democrats as a condition of keeping their jobs or contracts. The WPA’s blatant solicitation shocked the nation, leading to the 1939 Hatch Act, which included broad limits on political activity by federal employees. These included a ban on employee contributions to candidates and a ban on contributions by contractors.

In 1993 the Hatch Act was significantly amended, permitting federal employees to work on political campaigns while off-duty and contribute to candidates. Recipients of federal largess, such as grants, scholarships and benefits like Social Security or disability, also can make political contributions—even though, arguably, their contributions may be made with the goal of securing those benefits. Federal contractors like Wendy Wagner, by contrast, remain unable to make any contributions.

The outcome in Wagner will likely hinge on how closely the D.C. Circuit scrutinizes the connection between the law’s stated goal—preventing quid-pro-quo corruption—and its means of achieving that goal—banning contractor contributions. The fit between the law’s means and ends is loose at best.

For example, the law is oddly narrow. It prohibits contributions by a contracting entity, e.g., a corporation, but it allows the corporation’s employees and officers to make contributions—while sole proprietors like Ms. Wagner cannot. If Ms. Wagner wants to contribute, she can form a corporation, call herself the president, and sign her contract as president of Wagner Inc. If there truly is a risk of corruption, why permit such formalistic evasion of the law and give corporations an unfair advantage over sole proprietors?

Similarly, the law doesn’t ban contractors from fundraising or bundling—activities far more beneficial to political candidates—and it doesn’t ban contributions made before securing a federal contract. Any corruption risk is surely highest at the stage before awards are made, when those vying for contracts may hope that large contributions will win them a contract award.

The law also is oddly broad. It bans contributions to any political party, PAC or federal candidate, even though it is agency bureaucrats—not politicians, parties or PACs—who award contracts. Similarly, the law bans contributions to independent-expenditure groups—so-called Super PACs—such as Planned Parenthood Votes, or the Tea Party Patriots Citizens Fund. Yet none of these Super PACs can influence the awarding of federal contracts. A law that bans contractor contributions to individuals and entities that have no rational connection to the award decision is incapable, by definition, of reducing quid-pro-quo corruption—since the quid (contribution) cannot produce the quo (contract award).

If the D.C. Circuit concludes that the federal contractor ban violates the First Amendment, it will be because the courts now understand that prior restraints on political speech cannot rest on the government’s mere claim that such bans are needed to prevent corruption. When laws restrict citizens’ most fundamental constitutional rights, such as the right to political speech, courts have a duty to put the government to the test—to ensure not only that the laws advance important interests like preventing corruption, but that they are tightly calibrated to further those interests.

In Wagner, the D.C. Circuit will have an opportunity to show that judges take their duty to protect political speech very seriously.

Mr. Rivkin, a partner at the firm Baker Hostetler, 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 and the author of “Defending Citizens United,” forthcoming from Prager in 2015.

Source: http://online.wsj.com/articles/david-rivkin-and-elizabeth-price-foley-youre-a-contractor-political-contributions-not-allowed-1413932117
In The Wall Street Journal, David Rivkin and Elizabeth Price Foley write that the latest First Amendment battle gives courts another chance to re-evaluate a prior restraint on political speech.
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Federal courts need to stop Obama from flouting the Constitution

By David B. Rivkin Jr. and Elizabeth Price Foley, July 25 at 7:34 PM

The Constitution states that it’s Congress’s job to make the laws and the president’s to faithfully execute them. It does not permit a president to suspend a law or grant special dispensations from its requirements. But President Obama has done just these things on numerous occasions, and only the federal courts can preserve the constitutionally mandated separation of powers by definitively rebuffing his illegal actions.

Separation-of-powers lawsuits are generally straightforward: A private party, injured by some unconstitutional government action, sues for relief. Last month, the Supreme Court decided Noel Canning v. NLRB, a suit brought by a bottling company adversely affected by a National Labor Relations Board decision. The court unanimously concluded that the president’s appointments to the board, which had been made without Senate confirmation, violated the Constitution.

When a president suspends a law, however, private parties often lack “standing” to sue, because the act of not enforcing a statute doesn’t injure them in any individualized way. But such suspensions undoubtedly injure Congress as an institution. By arrogating to himself a power to rewrite laws, a president violates his duty of faithful execution and infringes on Congress’s lawmaking prerogatives. A suspension nullifies the law suspended and diminishes Congress’s power.

Such acts trigger a genuine constitutional crisis and undermine our democracy. Federal courts are well equipped to resolve such crises, as Alexander Hamilton explained in Federalist No. 78: “The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning.”

This week, the House Rules Committee approved a resolution authorizing a lawsuit challenging Obama’s Affordable Care Act suspensions. Skeptics of the lawsuit, which is expected to be authorized by the full House next week, argue that such congressional lawsuits — to date, mostly initiated by Democrats — usually fail because of a lack of standing.

However, there is a simple reason most of these suits have failed: To assert an institutional injury to the House or Senate, courts want proof that the chamber, as an institution — and not a rump group of legislators — believes it has been injured. For example, in its 1997 ruling in Raines v. Byrd , the Supreme Court denied standing to six congressmen who sued President Bill Clinton over the Line Item Veto Act, for three reasons:

First, the injury the lawmakers alleged — a dilution of their voting power caused by future exercises of the line-item veto — was conjectural, since no president had yet exercised that veto.

Second, private plaintiffs (for example, those who would have personally benefited from federal largess but for a presidential line-item veto) would be readily available to challenge the act, so there was no need to resort to legislative standing. Indeed, in the following term, a private plaintiff sued, and the court ruled the act unconstitutional.

Finally, the court denied the legislators’ standing because they weren’t litigating on behalf of their colleagues. In the words of the court, the six “simply lost [the] vote” on the act, declaring: “We attach some importance to the fact that [the six] have not been authorized to represent their respective Houses of Congress in this action, and indeed both Houses actively oppose their suit.”

When legislators do represent their institution’s views, however, courts have granted standing. In 1939’s Coleman v. Miller, the Supreme Court granted standing to 21 Kansas senators who had sued the state’s lieutenant governor over his tiebreaking vote in support of a constitutional amendment, which the senators argued nullified the legislative will of the Senate. The court agreed that the Senate had suffered an institutional injury. Significantly, the senators — a majority of the chamber — unequivocally represented their chamber’s institutional position.

A few days ago, in the case of Kerr v. Hickenlooper, the full U.S. Court of Appeals for the 10th Circuit held that five Democratic Colorado legislators had standing on facts far less compelling than those of the House lawsuit. The legislators challenged their governor’s execution of a state constitutional amendment, asserting that the amendment nullified their power to raise taxes. Standing was granted despite the absence of an explicit institutional authorization for the lawsuit by their colleagues.

In numerous other cases, federal courts have recognized a single chamber’s standing to assert institutional injury caused by the executive’s refusal to comply with congressional subpoenas. In these cases, the chamber passed a resolution authorizing litigation to vindicate its institutional injury, which was described as a nullification of chamber’s investigatory power.

As the Supreme Court made clear in Eastland v. U.S. Servicemen’s Fund in 1975, subpoenas are “inherent in the power to make laws” and an “integral part of the lawmaking process.” A failure to comply with a chamber’s subpoena, in other words, is an injury to the lawmaking power of the chamber itself. The institutional injury caused by executive nullification of a subpoena is far less than that caused by executive nullification of a law. If ignoring a congressional subpoena is sufficient to establish legislative standing, ignoring a law should be more than sufficient as well.

The House lawsuit isn’t a stunt, and it isn’t frivolous. Precedent fully recognizes legislative standing to vindicate the nullification injury inherent in a president’s suspension of law. And while impeachment and cutting appropriations are useful political options to consider, neither can force the faithful execution of the law, much less prevent future presidents from continuing the destruction of separation of powers. For a tailored and proportionate legal declaration of the proper dividing line between Congress and the president, courts — and courts alone — are the appropriate venue.

Source: http://www.washingtonpost.com/opinions/federal-courts-need-to-stop-obama-from-flouting-the-constitution/2014/07/25/138f5bfc-12bc-11e4-98ee-daea85133bc9_story.html

David Rivkin, a partner at the firm Baker Hostetler LLP, served in the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Elizabeth Foley is a constitutional law professor at Florida International University College of Law.
Federal courts must stop the president from flouting the Constitution.
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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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