‘Clean Power’ Plays and the Last Stand for Federalism


Sept. 25, 2016, in the Wall Street Journal

After Congress turned down President Obama ’s request to enact a law regulating power plants’ greenhouse-gas emissions, the Environmental Protection Agency turned to the states—not with a request, but with instructions to carry out the president’s energy policy. The EPA’s “Clean Power Plan” now faces the scrutiny of the nation’s chief regulatory review court, the U.S. Court of Appeals for the District of Columbia Circuit.

If the Constitution’s federalism is to endure, the Clean Power Plan must be struck down.

The Constitution establishes a federal government of limited and enumerated powers while the states retain a plenary “police power,” subject only to the specific limitations of federal law. This is what Justice Anthony Kennedy called the Constitution’s “genius”: It “split the atom of sovereignty” to ensure accountability when meeting both local and national concerns, while fostering rivalry between the two levels to curb excessive political ambition that might threaten liberty.

Only in recent decades did politicians learn how to realize their ambitions through collusion. The federal government now entices states with transfer payments to establish and administer social-welfare programs. And, in schemes that the courts describe as “cooperative federalism,” it offers states the choice to regulate their citizens according to federal dictates, as an alternative to the feds regulating directly and having states get out of the way.

Even these approaches were not enough for the Obama administration to cajole the states to carry out its energy agenda. So it resolved to obliterate one of the last vestiges of the Constitution’s vertical separation of powers: the bar on federal commandeering of the states and their officials to carry out federal policy.

The Clean Power Plan is enormously complicated, but its overall approach is straightforward. Previous emissions regulations have focused on reducing emissions from particular facilities, but this one relies on shifting electricity generation from disfavored facilities (coal-fired power plants) to those the EPA prefers (natural gas and renewables). The EPA then determined what, in its view, is the maximum amount of such shifting that each of the nation’s regional electric grids could possibly accommodate and calculated the emissions reductions.

Parcel those figures out by state, factor in additional reductions due to estimated efficiency improvements at older plants, and the result is state-specific reduction targets. The states can elect to achieve those targets themselves—or, if they decline, the EPA will do it for them. “Textbook cooperative federalism,” says the EPA.

Not quite. Whether or not the states choose to implement the plan directly, it leaves them no choice but to carry out the EPA’s federal climate policy. That’s because the EPA can destroy but not create. It can regulate emissions of existing facilities, but it lacks the legal authority to facilitate the construction and integration of new power sources, which is ultimately the only way to achieve the plan’s aggressive targets.

That duty falls to the states, which the plan depends upon to carry out what the EPA calls their “responsibility to maintain a reliable electric system.” Doing nothing, as in the cooperative federalism scenario, is not an option.

So this is how the plan works: The EPA pushes coal-fired plants off the grid, and then counts on the states to ensure that the resulting reductions in capacity are matched by increases in EPA-preferred forms of power generation. State agencies will have to be involved in decommissioning coal-fired plants, addressing replacement capacity—like wind turbines and solar arrays—addressing transmission and integration issues, and undertaking all manner of related regulatory proceedings. All this to carry out federal policy.

The Clean Power Plan implicates every evil associated with unconstitutional commandeering. It dragoons states into administering federal law, irrespective of their citizens’ views. It destroys accountability, by directing the brunt of public disapproval for increased electricity costs and lost jobs onto state officials, when the federal government deserves the blame. And it subverts the horizontal separation of powers, by allowing the executive branch to act where Congress has refused to legislate.

One can only wonder what will be left of our constitutional order if the plan passes judicial muster.

The federal government would no longer be a government of limited powers, but instead be able to compel the states to do its bidding in any area. The states, in turn, would be reduced to puppets of a federal ventriloquist, carrying out the dirty work for which federal actors wish to avoid accountability. And the federal executive, in many instances, could effectively create new law by working through the states, free of the need to win over Congress.

So it is difficult to imagine a U.S. where the Clean Power Plan is the law of the land. It would not be the same country, or the same Constitution, that Americans have enjoyed all these years.

Messrs. Rivkin and Grossman practice appellate and constitutional law in Washington, D.C., and represent the State of Oklahoma and the Oklahoma Department of Environmental Quality in their challenge to the Clean Power Plan.

Source: http://www.wsj.com/articles/clean-power-plays-and-the-last-stand-for-federalism-1474841482

Legislators go back to court for contempt ruling against McAuliffe

By David B. Rivkin Jr. and Andrew M. Grossman

September 11, 2016, in the Richmond Times-Dispatch

This past July, the cronyist government of Venezuelan President Nicolas Maduro threw out more than half of the signatures on a petition for a recall to remove him from office, citing “unclear handwriting.”

That is not a problem shared by Virginia Governor Terry McAuliffe, whose autopen machine traces a perfectly legible facsimile of his signature every time. Following the autocratic example of Venezuela and other rule-of-law pariahs, McAuliffe has his autopen working overtime to transform Virginia into a banana republic, one signature at a time.

The signatures — a mere 206,000 or so of them — are the centerpiece of McAuliffe’s scheme to circumvent the Virginia Supreme Court’s July ruling striking down his executive order that suspended the Virginia Constitution’s general rule stripping felons’ voting rights. The court agreed with legislative leaders who had challenged the order that it was not a legitimate exercise of the governor’s power to grant clemency in particular cases. It was, instead, an unlawful attempt to suspend the operation of a law simply because the governor disagrees with it.

Does he ever. The same day that the decision issued, McAuliffe told the press that he “cannot accept” it. A few days later, citing the venerable maxim that “you’ve got to do what you got to do,” he vowed that “all 206,000 (felons) will have their rights back” in a matter of weeks.

Thus, the autopen. Rather than a single bulk order suspending an entire felon-voting bar, McAuliffe would achieve the same result by issuing an individual order for each felon in Virginia who has completed his or her incarceration and supervised release. On Aug. 22, the governor announced that he had issued 13,000 orders restoring voting rights for the felons who had registered to vote under the order struck down by the Supreme Court and promised (many) more to come.

In response, the same legislators who defeated McAuliffe’s first order have asked the Virginia Supreme Court to hold the governor in contempt and act to enforce its prior judgment.

As their motion exhaustively describes, McAuliffe’s new orders amount to outright defiance of the court’s earlier decision. That decision did not turn on the fact that McAuliffe had issued a blanket order, but instead focused on the “practical effect” of that order as nullifying the law. The new orders have the same effect as the old one, unilaterally suspending the operation of the constitution’s felon-voting bar in precisely the same way, with respect to precisely the same persons. As the legislators’ contempt motion observes, the “Court did not reduce the suspension clause of the Constitution to a printing requirement.”

Indeed, seeking to foreclose further legalistic scheming, the court took pains to state that a Virginia governor cannot “suspend unilaterally the enforcement of any criminal law in the Code of Virginia, based solely on his personal disagreement with it, simply by issuing categorical, absolute pardons to everyone” subject to it. And it made clear that proper exercise of the pardon power requires a “specific request by individuals seeking such relief” and consideration of their “individual circumstances.”

So, whether the Virginia Supreme Court’s decision got the law right or wrong, there is no disputing that McAuliffe’s current actions clash with what it ruled. And that is reason enough for the court to hold the governor in contempt and invalidate his flurry of orders.

But the stakes are far higher than in the last round. McAuliffe’s disrespect for the law and for a co-equal branch of government threatens the freedom and political rights of all Virginians. It is worth recalling President John Kennedy’s admonition, offered in response to defiance of the court-ordered desegregation of the University of Mississippi, that “observance of the law is the eternal safeguard of liberty and defiance of the law is the surest road to tyranny.” As Americans, we are free “to disagree with the law but not to disobey it.”

That principle applies with special force to those whom we entrust with the power and responsibility to carry out the law. Nicolas Maduro may be above the law, but Terry McAuliffe and his autopen are not.

David B. Rivkin Jr. and Andrew M. Grossman practice appellate and constitutional law in Washington, D.C. 

Source: http://www.richmond.com/opinion/their-opinion/guest-columnists/article_758b5af8-7db4-5c23-b45b-91f8fa015a9c.html

Let the Electoral College Do Its Duty

September 7, 2016, in the Wall Street Journal

To those counting the days until Nov. 8 when the presidential election campaign will finally end, some bad news: The contest won’t truly be decided until the Electoral College’s vote on Dec. 19. Then again, this could be good news for Americans who still hope to escape the dilemma presented by the major parties’ nomination of two unpopular candidates, Hillary Clinton and Donald Trump—but only if the electors’ constitutionally guaranteed independence is observed in the face of state laws seeking to control their votes.

America’s method of presidential selection is as peculiar and clever as the federalism and separation-of-powers principles that fostered it. To guard against the passions of populism, the Framers interposed a college of state-based electors between voters and the actual presidential selection. To discourage political obligation and intrigue, they provided that the electors would meet just once, in their respective states, for the sole purpose of casting ballots for the next president and vice president.

And to prevent the presidency from being captured by regional interests, they required the winner to obtain a majority of the Electoral College votes. Failing that, the election is thrown to the House of Representatives, to choose among the top three vote-getters.

Today, the Electoral College vote is regarded as a nearly mechanical process: The parties nominate their slates, elector seats are awarded (in most states) to the popular vote winner’s party slate, and a few weeks later the electors certify what the people have already chosen.

In an unusual campaign year like this one, however, that may be too much to take for granted. Electors are typically party stalwarts, but many ideologically committed Democrats and Republicans lack enthusiasm for this year’s top-of-ticket candidates. Several would-be Republican electors are already publicly flirting with the idea of casting their votes for someone other than Mr. Trump, believing that his erratic outbursts have “disqualified” him from being president.

Right or wrong, that is exactly the kind of discernment that the Constitution demands electors exercise. It was their duty, Alexander Hamilton explained, to ensure that “the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.”

Instead, representing the interests of their states and constituents, the electors would vote only for those possessing “the esteem and confidence of the whole Union” sufficient to win the requisite majority vote, thereby providing “a constant probability of seeing the station filled by characters pre-eminent for ability and virtue.” If the parties have failed in that task, then it falls to the electors to provide a final check.

Elector independence is also a practical necessity. Federal law provides no other means to respond to the death or incapacitation of the popular vote-winner after Election Day but before the Electoral College votes. Likewise, death or disability shortly before Election Day may present the same quandary, given state-law delays in altering ballots. And should electors blind themselves to revelations of corruption or foreign control that might emerge in the weeks before they meet? To deal with all of these contingencies, the Framers’ intention was that electors would exercise their discretion and judgment.

As a matter of original constitutional meaning, elector independence is not a controversial proposition. Both Article II of the Constitution and the 12th Amendment, which clarified the selection of the vice president, provide that electors shall “vote by ballot,” a term of art referring to secret ballots rather than publicly cast votes.

By contrast, other constitutional provisions use words like “choose” or “election” that do not indicate secrecy. Voting in secret is the means by which electors may exercise their discretion, free from any attempt to control their vote.

Nonetheless, 29 states and the District of Columbia have laws on the books purporting to bind electors to vote for their party’s candidate or in accord with the state’s popular vote. Some enforce those mandates with fines or even criminal penalties—typically a misdemeanor charge. Others regard the casting of a “faithless” elector vote as resignation from the post and cancellation of the ballot. Despite dozens of electors choosing over the years to cast ballots for someone other than their party’s candidate or to abstain, these laws have never been enforced. Nonetheless, their very existence misleads the public and, even worse, chills electors from discharging their duty to exercise judgment.

The time is ripe to put an end to this legal charade and establish, as federal-court precedent, that the Constitution forbids enforcement of elector-binding mandates. The Supreme Court ruled in a 1952 decision, Ray v. Blair , that delegate pledges are unobjectionable, as nothing prevents an elector from announcing his intended vote beforehand. But the court recognized that enforcement of pledges raises constitutional concerns.

State courts that have considered the matter have held that elector pledges can impose, in the words of the Supreme Court of Ohio in 1948, only “a moral obligation, not a legal one.” As that court concluded, when a state attempts to “dictate to the electors the choice which they must make for president and vice president, it has invaded the field set apart to the electors by the Constitution of the United States, and such action cannot stand.”

Messrs. Rivkin and Grossman practice appellate and constitutional law in Washington, D.C. They represented Beau Correll, a delegate to the Republican National Convention, in his successful legal challenge to Virginia’s delegate-binding statute.

Source: http://www.wsj.com/articles/let-the-electoral-college-do-its-duty-1473290734

This Latest Labor Gambit Is a Piece of Work

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.

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

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. Continue reading

Punishing Climate-Change Skeptics

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


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